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Food Adulteration

By pallavishali1 Dec 19, 2012 9680 Words
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LAWS ON FOOD ADULTERATION: A CRITICAL STUDY
WITH SPECIAL REFERENCE TO THE FOOD SAFETY AND
STANDARDS ACT, 2006.1
I. Introduction
INDIA HAS been called the land of Annapurna. Food and water are not only the elixir of life, but they are worshipped as gods. In spite of this fact, the evil of food adulteration is not only present in the society to a great extent, but its history can be traced back to the times of Kautilya.2

Recently, during Deepawali festivities there was no dearth of news reports on the television and the local newspapers on how the adulteration is being done in the sweets by the businessmen. As it is the only time that the news channels are very active educating and informing the public, that it seems festival is the only time when such malpractice is on. But, the reality is that we hardly consume food on any day, which can be considered pure and unadulterated. The food items and the ingredients that we use to prepare food contain adulterants. During the parliamentary debates in the Lok Sabha, one of the Members of Parliament, Mr. Shailendra Kumar, shared his view on the seriousness of the problem, as follows:3

…there is adulteration in milk. Urea and Oxitocin are mixed in milk which causes a great risk of abortion and impotency. I was just going through the report that adulterated biscuits in the name of glucose and other brands worth 25 crore were seized in Punjab. Likewise, I would like to remind the honourable minister that the adulteration in mustard oil in the year 1988 had resulted in spread of the disease cancer named „dropsy‟….mixing of coal-tar dye in pulses, tea, and coffee lead to cancer…Lead Chromite is mixed in turmeric 1

Act 34 of 2006.
R.P. Kagle, 4(2) The Kautilya Arthashastra 260-270 (1970); see chapter 2, s. 77. Kagle has translated those proses into English as follows: “As to difference in weight or measure or difference in price or quality, for the weigher and measurer who by the trick of the hand brings about (difference to the extent of) one -eight part in( an article)priced at one panna, the fine is two hundred (pannas)... For mixing things of similar kindwith objects such as grains, fats, sugar, salt, perfumes and medicines the fine is twelve pannas.”

3
21 Parliamentary Debates, Lok Sabha 390 (Jul. 26, 2006)
2

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which results in serious diseases like paralysis, anemia and abortion, etc. Copper salt is mixed in pickle which affects kidney. Rangoli is mixed in salt which causes stomach diseases…Injectioins are being used in vegetables for their early growth…injections to the cows and buffaloes to get more milk and profit…Similarly, the sweets contain a material named Metabil Yelova road mill which carries the risk of cancer.

As „food adulteration‟ is done in so many ways, one must precisely know what the exact definition of the term is. The Prevention of Food Adulteration Act, 19544 defines the terms “adulterant”5 and “adulterated”6 in so many words. In layman‟s language it means debasing of food article with an inferior or deleterious substance. It is a kind of slow poisoning. It is destruction of human life.7 It is the gravest of socio-economic crime. We call it socio-economic crime because it is done with the purpose of attaining profit. It has the tendency to erode national health, character and economy, in equal measure. The adulteration, by affecting the human resource of a nation, has direct impact on national progress and production (GDP) of a country particularly India which is a developing country. This may be the reason why Food Safety and Standards Act, 20068 defines the term “unsafe food” instead of adulterated food.

The serious problem before the nation in the form of a conundrum is that if the evil practice of adulteration can be traced back to antiquity, then so is the legal remedy, that has always been in place. Unfortunately, one remedy was replaced by the other with the passage of time, without any change in the situation. As a matter of fact history of food adulteration has been history of legislations. Going in the past, there were rules in Arthshastra. During the British era, the Indian Penal Code, 1860, came into force.9 The individual state laws, imposing strict liability started coming into force since 1912. Finally, 4

Hereinafter referred to as „PFA‟.
S. 2(i), PFA says adulterant is “any material which is or could be employed for the purpose of adulteration.”
6
S. 2(ia), PFA.
7
“It is often described as subtle murder practiced on community”; see Mahesh Chandra, Socio-Economic Crime 85 (N.M. Tripathi Pvt. Ltd., Bombay, 1979). 8
Hereinafter referred to as „FSSA‟.
9
Ss. 272 and 273 of the Indian Penal Code (IPC), 1860 deal with it. 5

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the central law and the rules there under were enacted in 1954 and 1955, respectively, which is operative till date. Subsequently, a number of orders were passed relating to fruit, meat, vegetable oil etc. In 1986, after the enactment of Consumer Protection Act, remedy came to the consumers by way of compensation as well, which is a codified form of law of torts.10

Presently, the central government has enacted the FSSA, 2006, which is the consolidation of all the existing laws on food in general, and food adulteration in particular. On November 18, 2008 the provisions related to the establishment of the Food Safety and Standard Authority came into force. Till date, the Central Authority11 has been established under the Act and the enforcement of rest of the provisions is still awaited.12 The authority is working on the Rules and Regulations to implement the Act.13 As soon as the Act completely comes into force, all the legislations and the orders presently in force14 including the PFA will cease to have affect.

It is evident after going through the FSSA, 2006 that it is better than PFA in many ways, but the actual implementation is yet to be tested which can be done only once the legislation comes into force. Before that is done, one has to really see where the problem lies. Is it in the law or is it in the implementation? Or is it that the solution lies entirely elsewhere?

As FSSA, 2006 is more or less framed on the basis of international model the direct question of feasibility of such a law in the Indian context comes in. Does India have the required machinery to
implement the law? In other words, do we have the required quantity and quality of laboratories which are of foremost importance to assure the implementation of the Act? According to V.S. Deshpande J.,15 apart 10

The Consumer Protection Act, 1986 is also available to the consumers in spite of PFA being in force.
11
Office is established in Delhi.
12
The Central Government has repeatedly assured to bring the legislation in force very soon. Last time it was done in March, 2009. According to the assistant Director General, Mr. Dhir Singh, the Act will become fully operational in the beginning of 2010; see The Financial Express, Mar. 15, 2009

13
As notified on www.fssai.gov.in (visited on Oct. 22, 2009 at 12:35 pm). 14
According to s. 97 of the FSSA, 2006 read with sch. II.
15
Former Chief Justice of the Delhi High Court; see the forewords to the book by Mahesh Chandra, Socio-Economic Crime (N.M. Tripathi Pvt. Ltd., Bombay, 1979).

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from many other reasons, lack of concerted and organized opposition by the society is the contributing factor. The battle against the socioeconomic crime in general has to be fought on legal as well as extralegal planes. As we critically analyze the FSSA, 2006, we see that there are advantages as well as certain loopholes that are yet to be filled and some questions that have remained unanswered. The quest for pure food is still on…

II. Food Adulteration: As Part of Different Laws
Before analyzing the FSSA, 2006 one needs to find out the remedies, if any, provided under the other existing legislations. Starting from the Constitution of India, right to pure food is not directly protected under the Constitution but it can be covered under certain provisions such as part of fundamental freedoms, the Constitution guarantees under Article 19(1) (g) freedom of profession, trade, or business, thereby ensuring that state cannot prevent a citizen from carrying on a business, except by a law imposing a reasonable restriction in interest of general public. Under Article 19(2), no such right can be enforced where the business is dangerous or immoral. There can be restriction on harmful trade.16

Right to food is a fundamental right under article 2117 and
similarly, right to health is also a part of right to life. It has been held in number of cases that life is more than mere animal existence. For example, in Kharak Singh v. State of U.P.,18 it was observed, “Article 21 mean not merely the continuance of a person‟s animal existence, but right to the possession of his organs, his arms and legs etc.” It cannot be argued that health is not a part of life when possession of all organs of the body is protected by the fundamental right to life.19

16

Harishankar v. Dy. Excise & Taxation Commissioner, AIR 1975 SC 1121. As recently reiterated by the Apex Court in PUCL v. Union of India, 2007 (1) SCC 719.
18
AIR 1963 SC 1295, 1312.
19
H.B. Giri, Consumer, Crime, and Law 87 (Ashish Publishing House, New Delhi,1987).
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On one hand there are rights then on the other hand are the duties of the state under article 39 (e) and (f)20 and article 47 of the Constitution to raise the level of nutrition and standard of living and to improve public health. The Supreme Court in Vinscent v. Union of India,21 held, “Maintenance and improvement of public health have to rank high as this is indispensable to the very physical existence of the community and on the betterment of these depends the building up the society which the constitution maker envisaged, attending to public health, in our opinion, therefore is of high priority, perhaps the one at the top.”

Finally, according to Schedule VII, adulteration of foodstuffs and other goods is given under entry 18 of the Concurrent List.
The adulteration of food with an intention to sell is an offence under sections 272 and 273 of the IPC which is punishable with the imprisonment of six months and fine. States like U.P., West Bengal and Orissa have enhanced the maximum punishment to life

imprisonment.22 The act is punishable when adulteration makes the food article noxious. According to Oxford English dictionary, “noxious” means injurious, hurtful and unwholesome. In Ram Dayal v. King Emperor,23 Privy Council held that the mixture of pig fat with ghee would be noxious to the religion and social feeling of both Hindus and Muslims, still it does not come under the section (as it is not noxious to the health). Similarly presence of non-permitted red oil solvable coal tardy, the percentage of which has not been reported, is not noxious.

Under the Code of Criminal Procedure the offence is noncognizable and bailable and not compoundable. The trial can be 20

The State shall, in particular, direct its policy towards securing - (e) that the health and strength of workers, men and women, and the tender age of children are not abused ….and (f) that the children are given full opportunities and facil ities to develop in a healthy manner…

21
A.I.R. 1987 SC 990 at 997.
22
An interesting question that arises here is that whether the increased punishment has lowered the rate of the cases of food adulteration in these states. This can be found out from the data given on www.indiastat.com. If the answer is “no” then it proves the failure of the approach and indicates that the solution lies somewhere else and not in punishing the accused simply.

23
As cited in S.K. Sarvaria‟s (ed.), 2 Ra Nelson’s Indian Penal Code 2338 (Lexisnexis-Butterworth and Wadhwa. Nagpur, 10th edn., 2008); A.I.R. 1925 All 214(1).

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conducted by any magistrate. In U.P. and Bihar there is no period of limitation prescribed for taking of cognizance of the offence. According to section 455(2) of the CrPC, the court may, in the like manner, on conviction under sections 272 and 273 of the Indian Penal Code, order the food, drink etc. in respect of which conviction was made, to be destroyed.

In Emperor v. Barumal Jawarnal,24 it was held that selling wheat containing a large admixture of extraneous matters, as foreign matter is separable and wheat is not consumed in its existing condition. There the offence was not committed. Similarly, according to Dhawa v. Emperor,25 the mixture of water with milk is no offence, as the mixture is not noxious.

By going through the provisions and moreover the cases under the sections, we can easily conclude that there are loopholes that allows the easy acquittal of the accused. Firstly, the case will not be covered if the article of food is not noxious and secondly, it has been difficult to prove the intention or the knowledge to sell.

Any person committing the offence is prosecuted by the state but the consumer who was the victim of adulteration hardly gets any relief under the IPC. In 1986, the Consumer Protection Act26 came into force which provided for compensation to the consumers. While the PFA and the FSSA, 2006, which will be dsicussed shortly, are piece of consumer legislations that specially deal with malpractice of traders with regard to food, the CPA is an umbrella legislation, which covers each and every good and service that a consumer buys or hires on giving consideration. The remedy available to the consumer is compensation under CPA. The PFA provides for punishment and

fine.27 The procedure followed here is criminal procedure. In the FSSA, 2006 there is a unique blend of penalty in way of fine and punishment28 and compensation.29

24

Id. at 2345; (1904) 1 CrLJ 618.
As cited in K.D. Gaur, A Textbook on the Indian Penal Code 350 (Universal Law Publishing Co., New Delhi, 3rd edn., 2004); A.I.R. 1926 Lah 49. 26
Hereinafter referred to as „CPA‟.
27
PFA, s. 16.
28
Id., ss. 50-58.
29
Id., s. 59.
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J.F. Kennedy (in 1962) declared some basic consumer rights as right to safety, right to be informed, right to choose, and right to be heard.30 Right to redress, right to healthy environment, can be added to it. The CPA recognizes these rights in the objectives.

The CPA is special in a way that it follows its own tribunal system from the District Forum to National Commission from where the appeal goes to the Supreme Court. These tribunals are established under the article 323B of the Constitution. Section 3 of the Act says that the provisions of the CPA are in addition to provisions of any other all laws for the time being in force. It means that provisions of all the laws are equally applicable for the protection of the interest of the consumer. Therefore, CPA and the PFA are equally applicable. The Prevention of Food Adulteration Act, 1954

A very important step towards the addressing of the problem of food adulteration was done in the year 1954 by enacting a central legislation on the subject keeping in view the limits of the penal code. For example, it does not cover the mixing of the substances that are not noxious as water in milk and stone and inferior quality grains in pulses. Moreover, it requires proving mens rea. The Act provides for strict liability and at the same time condition of adulterated food to be „noxious‟ is done away with.

Prior to this there were number of state laws for each state, which were enacted at different times and without mutual consultation between the states. In 1937, a committee was appointed by the Central Advisory Board of Health and it advised for the central legislation to bring uniformity in the law. The basic idea behind is deterrent theory. It has 25 sections and the rules were framed under it in 1955. In Municipal Corporation of Delhi v. Surja Ram31 the object of the Act was explained as follows:

…[T]he object and the purpose of the Act are to eliminate the dangers to human life from sale of unwholesome article of food…it is 30

Ravulapti Madhavi, “Is Food Safety Lurking in the Food Safety and Standards Act, 2006?”, 4(23), SCJ (Jour) 17 (2008).
31
As cited in Parkash C. Juneja, “Prevention of Food Adulteration Act and Consumer Protection”, 8 Central Law Quarterly 371(1988); (1965) Cr.LJ. 571.

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enacted to curb the widespread evil of food adulteration and is legislative measure for social defense. It is intended to suppress a socio-economic mischief, an evil that attempts to poison, for monetary gains, a very source of substance of life and well being of the community.

The Act provides for a Central Food Laboratory32 and the Central Committee for Food Standards. The central government is vested with the rule-making power. As per the need, the Act was amended four times -1964, 1971, 1976, and 1986.

Loopholes in the PFA: Roscoe Pound, while classifying the social interests under six heads, placed public health at top of it. As already mentioned, in India also it is one of the directive principles of the state policy. In spite of this fact, the object of the legislations has not been achieved yet. There can be „n‟ number of reasons behind it, but the doubt starts from the effectiveness of the legislation itself. There are many critics of the PFA who have pointed out a number of loopholes in it.33 Some of the prominent ones are mentioned herein, like the Act does not provide for the mandatory standardization of food products.34 There is no requirement for training to the food inspectors. Usually, they don‟t know how much sample to take and in what quantity the preservative is to be mixed in the sample because of which the samples are usually destroyed by the time they are tested. The minimum number of such inspectors required for the area is not given. In other words, the inspector to the population ratio is missing in the Act. The PFA gives right to any person to get the sample tested if he thinks that it contains deleterious substance under section 12. But for this he has to pass two hurdles. First, he has to inform the seller the purpose for which he is taking the sample and second that for analysis he has to pay the requisite fees. As far as the first issue is concerned, no trader who is really guilty will allow the consumer to take the sample. Secondly, though the fee is refundable if the analysis report is positive, it is not possible for all to afford it initially, as it is usually

32

To which food samples can be referred to for final opinion in disputed cases. Prominent critiques are compiled herein.
34
Even quality control under Agmark for agricultural commodities including food item is voluntary. See, Subhash C. Sharma, “Consumer protection”, 8(4) Central India Law Quarterly 377 (1995).
33

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costly affair. Moreover it is always doubtful whether the analysis will be cent percent precise.
There is the major problem with procedural part of the Act. The Act fails to mark distinction between the categories of adulteration and have same punishment for all kind of adulteration.35 According to P.A.S. Rao36 though an honest attempt has been made to classify the penalties into seven categories, it is unintelligible and obscure. “The procrustean cruelty is writ large in the provisions of section 16.”37 While sentencing, the judge has no discretion as there is provision of minimum punishment. On the contrary, a burden is placed on him to state in judgment the special and adequate reasons as to why a particular punishment is meted out.38 Lack of coordination has been witnessed between the food inspector and public analyst who are not legal persons and the public prosecutor who is not technical person. This benefits the accused.39Moreover, the magistrates usually handling criminal cases are not specialists in food adulteration matters and at the same time they have the mindset of giving benefit of any doubt or any inordinate delay to the accused, which spoils the prosecution case. On one hand we can see that the procedure adopted makes it

difficult to prove the accused guilty, on the other hand the PFA is covered under the Probation of Offenders Act, 1958. According to section 20AA of the PFA, the Probation of Offenders Act, 1958 and section 360 of Code of Criminal Procedure, 1973 are applicable to the persons convicted under the PFA. As a result of this even the perpetrators of the heinous socio-economic crime like this, which are covered under the strict liability, are let loose after getting caught for the first time.

Coming to the practical side, under the present scenario the retailers are not in the position to press the manufacturers for giving

35

Subhash C. Sharma, “Consumer Protection”, 8(4) Central India Law Quarterly 377, 381 (1995).
36
, P.S. Rao, “A Critique on the Prevention of Food adulteration Act, 1954”, 13 Chartered Secretary 827 (1983). Author is Secretary, Food Specialties Ltd., New Delhi.
37
Ibid.
38
Ibid.
39
Supra note 34.

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guarantee. Moreover there are no facilities available to the traders to test the purity of the articles at the time of purchase.40
III. The Food Safety and Standards Act, 2006
The Food Safety and Standards Act has been enacted to consolidate the laws related to food. The important thing to note is that it does not deal with the food adulteration alone. It can be easily inferred from the broad definition of the term “unsafe food “under section 3(zz) along with many other expressions important for laying down the standards. Again, the Act gives a vast definition of “adulterant”.41 And at the same time few more definitions give us a broad picture such as “contaminant”, “extraneous matter” and “food additive”. The short title also leads us to the same conclusion. The interpretation clause defines “food safety” as “assurance that the food is acceptable for human consumption.”,42 and “standard” {under section 3(zv)} as “in relation to any articles of food means standards notified by the food authority”. For removing any doubt the term “sub-standard” is also defined {under section 3(zx)}.

Historical Backdrop:
The earliest mention of the comprehensive legislation on food with a Food Regulatory Authority can be traced back to 1998 in the
recommendations of the Subject Group on Food and Agro Industries appointed by the Prime Minister‟s Council on Trade and Industry. 43 In 2002, in the Budget Speech given by the Minister of Finance an elaborate mention was made.44 Subsequently, a GoM was constituted 40

Emily Andrews, “Penal Law on Food Adulteration”, 8 Cochin University Law Review 337 (1984).
41
According to s. 3(a), “…any material which is or could be employed for making the food unsafe or sub-standard or misbranded or containing extraneous matter.” 42
S. 3(q).
43
Statement of Object and Reasons, FSSA, 2006.
44
See Government of India, Report on Pesticide Residues 147 (Parliament Committee on Pesticide Residues , 2004); An extract, “A Multiplicity of regulations for food standard under the Prevention of Food Adulteration Act, the food products Order, the meat Products Order, the Bureau of Indian Standards and MMPO, affect the food and processing sectors. They need to be modernized and converged. The

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for the purpose. This law was expected to take into account the international scenario and modern developments in developed and developing countries so as to create an enabling environment and promote self-compliance by the Food Processing Industries. The Ministry of Food Processing45 was given the responsibility to assist the GoM.

The first meeting of the GoM was held on Jan. 27, 2003 under the Chairmanship of the Minister of Law and Justice. On this occasion, along with the second meeting held on March 18, 2003, there were deliberations made on how to chalk out a common strategy for common acceptable draft bill. It was unanimously agreed that study of international experience can become the building block of the new legislation and an independent developmental and regulatory authority be first set up, by bringing the statute, to look into all the aspects of existing food laws and commend new legislation. It was also decided that Secretary, Ministry of Food Processing Industries would coordinate discussion with Secretary, Law Commission. Consequently, the Member Secretary gave its recommendations.

After all these exercises, the Ministry of Food Processing prepared the draft Bill that was places in the Lower House on August 25, 2005 by the then Minister of State Mr. Subodh Kant Sahay. The debate was mainly held on July 26, 2006 in the Lok Sabha and on August 1, 2006 and on August 2, 2006 in Rajya Sabha. The Bill got the President‟s assent on August 23, 2006 and has come into force in fragments from time to time.46 The Authority was established on November 18, 2008. Aim of the Act is to have an integrated and modern law on food problems and to have a central authority, which can lay down the science-based standards for scientific development of the food processing industry.47

prime Minister has decided to set up a Group of Ministers (GoM) to propose legislative and other changes for preparing a modern integrated food law and related regulations.”
45
The ministry was formed during the primeministership of Mr. Rajiv Gandhi in Jul. 1988.
46
Ss. 4-10, 87, 88, 91 and 101 came into force on Oct. 15, 2007. Ss. 3 and 30 came into force on Aug. 25, 2008. S. 90 came into force on Aug. 28, 2008. Ss. 16 -18, 8186, 92 and 93 came into force on Nov. 18, 2008. 47

According to the Introduction, Statement of Object and Reason, and Preamble of FSSA, 2006.

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The main features of the Act are: to establish an integrated line of control and response, decentralization of licensing, single reference point, self-compliance, making the business food operators to ensure the quality at all the stages and graded penalties. The Act claims to be contemporary, comprehensive, and having standards based on science and transparency.

As the Act mentions few documents in the statement of Objects and Reasons, which molded the draft bill, it becomes necessary to see the Act in their light. They are discussed below.
Standing Committee of Parliament in Agriculture (2004-05)
The Ministry of Food Processing Industry constituted the standing committee under the chairmanship of Mr. Ram Gopal Yadav. The report of the standing committee was presented to the House on April 20, 2005. There were Five Schemes suggested.48 One of them was „the Scheme for quality assurance, Codex standards, research and

development‟ which included „food safety and quality assurance mechanism‟.
The committee emphasized on three points related to the FSSA, 2006. Firstly, need of value addition by food processing which is much required for agricultural development.49 Secondly, need for uniformity of standards, uniformity of quality, uniformity of regulations and removal of multiplicity of legislation.50Thirdly, that the statistics of laboratory is very grey. According to the report, even the Ministry of Food Processing did not have its own food-testing infrastructure, which was being managed by the Ministry of Health. Therefore, it recommended a strong network of food testing laboratories, at least one in each State/Region under the direct control of food processing ministry.51

48

Government of India, Report: Standing Committee on Agriculture 4-5 (2005). Presented on Apr. 20, 2005.
49
Id. at 1.
50
Id. at 13.
51
Id. at 27 and 43.

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Joint Committee on Pesticide Residues in and Safety Standards for Soft Drink, Fruit Juice and Other Beverages:
The report of the Committee was presented on February 4, 2004.52 As the title suggests, the report is mainly on pesticide residues that were found in the cola brands and their level was 24 times more than the permissible international limit. It mentioned the sorry state how PFA is not having sufficient provision to fight against such unsafe food and why we are in need of a completely new approach based on

international model. So far as the soft drinks, etc are concerned, the Ministry of Food Processing Industries is the licensing authority and Ministry of Health and Family Welfare is the regulatory authority. Moreover, how the food sector is further divided between nine ministries can be seen as given below.

Likewise, there is multiplicity of laws, enforcement and standard setting agencies. For example the laws, other than the PFA, that are presently in action are:
1. The Fruit Products Order, 1955.
2. The Meat Food Products Order, 1973.
3. The Vegetable Oil Products (Control) Order, 1947, etc.
Management of Food Industry under different Ministries:
MINISTRY OF
MINISTRY OF
MINISTRY OF FOOD &
HEALTH AND
AGRICULTURE
CONSUMER AFFAIRS
Essential Com. Act, 1955
FAMILY WELFARE Agriculture Produce
Prevention of Food
Marketing Act
Standards of Weights
Adulteration Act, 1954 Milk and Milk Product
&Measures Act,1976
PFA Rules, 1955
Order
Packaged Commodities
Health Food
Rule, 1977
Supplement Bill
Consumer Protection Act,
1986
B.I.S. Act,1986
VOP Control Order, 1947
VOP (Std. of Quality),
1975
SEO control (order), 1967
52

Under the chairmanship of Mr. Sharad Pawar.

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MINISTRY OF
MINISTRY OF FOOD
COMMERCE
PROCESSING
Imports & Exports
INDUSTRIES
Regulations
Fruit Products Order,
Export Inspection
1955
Agency
Tea Board
Coffee Board
Coffee Act & Rules
MINISTRY OF
MINISTRY OF
FORESTS &
SCIENCE
ENVIRONMENT
&TECHNOLOGY
Trade in Endangered Atomic Energy Act, 1962
Species Act
Control of Irradiation of
Ecomark
Foods Rules, 1991
G.M. & Organic Foods

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MINISTRY OF RURAL
DEVELOPMENT
Agricultural Produce
Grading & Marketing Act,
1937
Meat Food Products Order

MINISTRY OF HRD
(Development of Women
& Child Welfare)
Infant Milk Substitutes,
Feeding Bottles & Infant
Foods (Regulation of
Production, Supply &
Distribution) Act, 1992Rules, 1993
SOURCE: ANNEXURE to Joint Parliamentary Report on Pesticide
Residue, 2004.
Apart from this many organizations viz. Bureau of Indian
Standards, Central Committee for Food Standards, Ministry of Rural development under „Agmark‟, Export Import Council under Exim Policy etc. lay down standards in the food sector. Then there are many overlapping and contradictory provisions in the above-mentioned legislations and rules and orders. The report concluded that the system is over regulated and under administered. Further it laid down the salient feature for the new modern integrated food law as well as the duties of the Food Safety and standards Authority.

Recommendations of Member Secretary, Law Commission
After doing an in-depth study in the food laws of the countries53 where there is a central food authority, secretary came up with many suggestions. Some of them are:
53

European Union, United Kingdom, Australia, New Zealand, Malaysia, Canada, Thailand etc.

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1. There should be civil penalties for contravention of the act instead of criminal punishments.
2. Criminal sanctions should be restricted to contraventions of serious nature which must be tried by special courts.54
3. The new act must, apart from establishing a Food Safety and Standards Authority empower the Central Government to
prescribe standards for food articles.
4. The Central Government and the state government shall have power to recall any food item posing risk to the health.
5. Contravention of provisions of the Act should be subject to civil penalty adjudged by adjudicating officers appointed by the state government.
6. Appeals must lie to one-man tribunals to be established by these state governments.
7. The comprehensive standard-setting legal instrument must
expressly make it clear that the mandatory provisions will not apply to primary food producers namely farmers.55
The practices like focus on in-process quality control rather than product testing, compliance rather than prosecution, compounding of minor/technical violation, high Power Screening Board to examine cases before prosecution,56 Periodic quality audits of food factories,57 etc. were also observed by the commission. It is interesting to note that FSSA, 2006 is mainly based on the recommendations of the member secretary of the Law Commission.

The Codex Alimentarius
The Codex Alimentarius is a Latin term that means „Food Law or Code‟. It is a collection of international food standards adopted by the Codex Alimentarius Commission, which is an international body 54

Trial by the Special Court was also suggested by the Ministry of Health in their Concept Note on amendments to PFA.
55
It is done so that their interests are not adversely affected by the proposed enactment. However the farmers should be encouraged to voluntary comply with the set standards. The central government can frame suitable schemes under the Act, offering incentives to such farmers.

56
The procedure is followed in Thailand
57
The procedure is followed in Turkey.

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responsible for the execution of the Joint FAO/WHO Food Standards Programme. FAO and WHO created the Commission in the year 1962. The programme is aimed at protecting the health of consumers and facilitating international trade in food.

The standards in the Codex are for all principal foods, whether processed or semi-processed or raw. A country in any one of the ways may accept these standards.
The Codex defines certain terms related to the processing of food. The definitions in FSSA, 2006 are taken from the Codex. For example, the definition of „food‟, „food additive‟, „contaminant‟, „hazard‟, „risk‟, „risk analysis‟, „risk assessment‟, „hazard identification‟, „hazard characterization‟, „claim‟, „consumer‟, etc. In the Preamble to the Code of Ethics for International Trade in Food,58 the right to standard of living adequate for the health and well being of the individual and his family is proclaimed in the Universal Declaration of Human Rights of the United Nations. Therefore, the major objective of the work of Commission is to protect the health of consumer and ensure fair practices in the trade in food.

Benefits of FSSA
According to Subodh Kant Sahay, “the Act is a historic one. It is fully agriculture oriented and will constitute a regulatory authority that will govern the standards and quality of food right from national level to Panchayat level. ..Again, it is a major initiative in abolition of inspector raj.”59 The biggest advantage it has is the mandatory standardization it provides for food. Moreover, the liability of the person will be civil liability which will be easier to prove. It will be the special responsibility of the food business operator to ensure that the articles of food satisfy the requirements of the Act at all stages of production, etc.60 As the Act has taken inspiration from the Codex, its standard will match the world level quality. For the first time there is a provision for compensating the consumer who gets any injury or incur any health hazard, along with the penalty or punishment given to the 58

1A Codex Alimentarius 17 (1999).
Supra note 3 at 376.
60
The FSSA, s. 26.
59

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perpetrator. The Act imposes responsibility on the operator of business to recall the articles of food, if he finds that they don‟t satisfy the standards of the Act.61 If the inspector or the food officer is found misusing his power, there is provision to impose fine on him on the proof of his being guilty.62 The amount of fine is Rs.10,00,00.63 Now there will be only one Ministry looking into the whole affair instead of nine ministries. The graded system of penalties will remove confusion and inequality that existed before as there was same minimum punishment for all forms of adulteration.64 In the adjudication system, there are two types of treatment: the matters that are hazardous to the health and those that are not. Latter will be referred to the Special Court and later to the High Court. Farmers and the fisherman are excluded from the purview of the Act. There is wide network of checks and balances that have been provided in this Act. Every business operator is required to have license or registration. Every distributor is required to be able to identify food articles to the manufacturers and every seller to the distributor. Standards based on science are required to be in place that will support the scientific development of the food processing industry. There is provision for the establishment of the scientific panel and committees. There is a provision for improvement notice65 to be given to the one not complying with the standards, after non compliance of which the food safety officer can take the action. There are so many checks to make sure that a wrong case is not made against any manufacturer. Starting from Food Safety Officer, the Adjudicating Officer, Food Safety Appellate Tribunal, State

Commissioner of Food Safety, Special Courts (in case of
imprisonment), and finally the High Court will provide correction if required. The Act will include the Food distributed in the Public Distribution System i.e. it will cover the Food Security Act, 2009.66 This is possible by virtue of section 3(n), which defines „food business‟; it means “any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to 61

Id., s. 28. It provides for the „recall procedure‟.
Id., s. 39.
63
This amount was nominal in the PFA.
64
The FSSA, ss. 48-67.
65
Id., s. 32.
66
Not brought to force yet.
62

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any stage of manufacture, processing, packaging, storage,
transportation, distribution of food, import and includes food services, catering services, sale of food or food ingredients.”
IV. Loopholes in FSSA, 2006
Above mentioned benefits give a very bloomy picture but if we look deeper the legislators seem to be overzealous in incorporating the international standards. The main focus of the Act is on the processing industry and the unorganized sector is completely neglected. Almost every report says for a Central authority but doesn‟t mention how the establishment of central authority has proved to be effective in other countries. Some of the drawbacks are given below.

1. As the Act provides for compulsory process of registration, this may create problem for small businessmen like hawkers and
venders.
2. There is no registration process mentioned; nor is there any authority specified for the registration.
3. The Food Safety Officer has defined no jurisdiction for the sake of inspection and seizer of sample.67
4. The provisions that give power to the officers to grant license, or impose huge penalty give way to possibility of corruption.68 5. As the Act provides for both the criminal as well as civil procedure, there is possibility of confusion as to what procedure to be followed.

6. One year limitation period has been provided for the bringing the case in the notice of an authority under the Act.
7. Except from the packaged drinking water, the potable water used in the manufacture of most of the articles of food, is excluded from the purview of the Act.69
8. Finances are lacking for the complete implementation of the Act. According to the Financial Memorandum of the original Bill.70 The total sum allocated for the purpose is ten crore rupees. Seven crore 67

The power is given under s. 41(1) of the FSSA.
The FSSA, s. 69(1).
69
PFA expressly excludes water.
70
The Food Safety and standards Bill, 2005 along with the Financial Memorandum was introduced in the Lower House on May 22, 2005.
68

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have been spent on the infrastructure of the food authority and remaining sum is kept for the establishing of laboratories, which is highly insufficient.
9. There is no final decision as to which Ministry will see the administration side of the Act. Is it Food Processing Ministry or the Health Ministry that will see the implementation?
10. There are certain expressions that are not defined and that might add to the number of litigations due to their ambiguous meaning. For example, „safe and wholesome food for human consumption‟, „good manufacturing practices‟, and „good hygienic practices‟. Similarly, it is not clear as to why „contaminant‟, unlike any other term, is not defined as the Codex defines it. It omits the intention part of the definition.

11. The unorganized sector in India cannot be supposed to adhere to the norms of the Act as mentioning ingredients and their
specification, etc.
12. There is no estimation of the cost to be borne by the State Governments, which are the nodal agencies.
13. As food business includes „any undertaking whether giving profit or not‟, this tends to include in itself and even criminalizes services rendered by the gurudwaras, the zaket at Mosques and dargah, bhandaras, which feed millions of poor people. To avoid such undesirable consequences, we need laws to project the diverse food laws and culture from the disease causing homogeneous centralize food culture of the West.

14. There is no technical qualification attached to the ranks of the officers who are assigned the task of issuing of license and fixing of liability.
V. Suggestions
After thoroughly going through the provisions, I have following suggestions to submit:
1. As the number of hawkers cannot be denied in India, there should be representation from their association as well, in the Food Authority.

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2. The definition of „food‟ expressly excludes the animal feed from its purview. The fact is that whatever pesticides, insecticide etc. gets into the animal feed and consumed by the animal (cow, goat, etc.) becomes a part of food chain. For example, it is present in the milk. Therefore, this should be made part of the definition. 3. Food chain from farm to the products needs to be traced. But as the farmers are excluded from the purview of the Act,71 the tracing is possible to the mandi only.

4. As the there is lack of proper training of procedure, both legal and scientific or technical, there has usually been problem taking the sample in the adequate manner and quality required for testing. For this purpose, the Ministry of HRD can think over role of

universities, which can, after looking at the seriousness of the affair, provide for the courses on food testing.
5. A separate Ministry must look after the matter of food adulteration being a serious matter that affects the health of the citizens. In fact it should continue to run under the Ministry of Health rather than of the Food Processing, which has to deal with and look into other relevant affairs.

6. Food adulteration is a very serious offence. Therefore, it should make the CEOs of the company liable.
7. There should be laboratory in each district.
8. Hawkers should be brought under the ambit of the Act, as they do the major part of the commerce. The method of testing in their case should be made simple and non technical (not involving so many formalities)

9. Food recall should be issued in the media to inform the citizens and make them aware about the unsafe food.
10. The Act should have a compulsory provision for black-listing of the companies or even publication when held guilty of the offence. It should be made part of the punishment. Provisions for
publishing the name of the culprit is there but not in every case. So, it should be done in every case,
11. The Codex and the Committees have suggested Confidence
Building Measures among the consumers. This can be done by
attaching the logo displaying that products are safe. This logo that 71

See the definition of „primary food‟.

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can be understood by literate or illiterate person should be made mandatory.72
Relation of Science and Law:
As already mentioned, the main problem with the Act, whether PFA or FSSA, 2006 is the implementation. The laboratories are important elements towards implementation. They are the links between the science and law, not only because they are meant to detect the adulterant in the food but also because there should be correct detection of the disease caused by the bad food. The problem is that the Act does not give provision for such facility in the laboratories i.e. detection of the disease caused. Actually this should be one of the factors in deciding the graded punishment.

The preamble of the FSSA, 2006 goes “An Act to…establish the Food Safety and standards Authority of India for laying down science based standards for articles of food.” The question that arises is, such emphasis on science not being part of the PFA, does the new Act that provides for the establishment of state-of-art laboratories which are much more prompt and fast in giving reports? Will the interaction of law with the science contribute towards the accurate reports? The fact is that certain fields of science- epidemiology, toxicology, and clinical medicine, among others- are centrally needed to inform courts of whether and to what extent exposure to a product might have contributed to someone‟s injury.73 In order to show that exposure to toxic substances caused or contributed to the human harm, substantial, time-consuming, and often long-term scientific studies are needed. Human epidemiological studies are almost best kinds of evidence of human harm from toxic exposure.74 It is difficult to identify how much exposure was received. At the same time the studies are expensive to conduct. More seriously, judges and larger public may not appreciate how intensive they can be. Regrettably, too frequently, they are not able to detect an adverse effect even when it is present.

72

Supra note 44 at 156.
Carl F. Cranor, Toxic Torts, Science, Law and the Possibility of Justice 1 (Cambridge University Press, NY, 2006).
74
Ibid.
73

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Carcinogens, reproductive toxicants and neuro-toxicants are
invisible, undetectable intruders that can have long latency period and they rarely leave signature disease, often operates by means of unknown complex, subtle molecular mechanisms and when they
materialize into harm, injure humans in ways that researcher might not discover for years.75 Understanding the property of such substances and assessing any risk that they pose, requires even more subtle scientific expertise and studies than for other areas of inquiry. Are the laboratories in India ready for such challenges?

We don‟t have such facilities and that is a fact. Even during the parliamentary debates,76 Shri Ram Kripal Yadav of Patna said, “The fact is that in many States, there are no laboratories. What to talk of districts when there is no laboratory in the State capital. There is no proper staff who can guide…There is a laboratory in Patna. I myself have seen this laboratory which is in very poor condition.” Number of laboratories for testing food: Most of the laboratories in India have instruments that are old and are not functioning properly. Demand for state-of-art instrument was made in the Parliament during the debate. It was said77 that there is need to establish a large set up of down to line infrastructure and quality labs, which are essential for the implementation of the law. Shri Adhir Choudhary, an MP from West Bengal said:78

Due to lack of laboratory instrumentation, due to lack of proper training to testing personnel, due to lack of observation of rules, this sector has suffered a lot. It is suffering because the instruments are relatively expensive… [I]nstruments are to be imported from the foreign countries. We have resource constraint. Here scientific research is sporadic. Training facilities are poor and less rigorous. The honorable member also brought to the notice of the House the role of universities which are reluctant to offer course in food testing. Shri Avinash Rai Khanna,79 an MP from Hoshiarpur, tried to draw attention towards the financial aspects. The structure of authority

75

Supra note 71 at 11.
Supra note 3 at 435.
77
Id. at 377. See speech of Shri Subodh Kant Sahay.
78
Id. at 385.
79
Id. at 381.
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framed involves the expenditure of Rs. 10 crores.80 As much as Rs. 7 crore will be spent on the infrastructure. It is only Rs. 3 crore that will be left out to provide for the laboratories.
This shows how infeasible is the implementation of the Act. At present there are 72 laboratories in India at district, regional or State level in addition to the four Central Food Laboratories set up by the Central Government.81 Every State has one or more laboratory depending on the need. About 12 of the laboratories are under the control of the local bodies, whereas remaining ones are under the administrative control of the State Government.

This shows that the number is much below the required one.
Therefore, along with increasing the number of the laboratories, the Parliamentary Committee on Pesticide Residue in its report gave following suggestions to the Government with regard to the labs:82 1. To constitute the Task Force of experts to assess the situation and ensure the appropriate recognition and accreditation (from NABL)of the laboratories. Two of the labs should have international recognition.

2. The Indian testing methodologies should not be inferior in any sense to that of CODEX, WHO, ISO.
3. Testing manuals should be developed for all the parameters and the products that are covered under the Indian food laws.
4. The labs should be well equipped with the qualified personnel in all States/UTs.
Tussle between the Ministries: The PFA and other Orders and
legislations and food laws were under the regulation of various ministries. But it was mainly looked upon by the Ministry of Health and Family Welfare. One of the objectives of the Act was to converge such regulation. The question that arises is that under which Ministry it should now be placed?

After the deliberations it was the Ministry of Food Processing that was assigned the job of framing the legislation though it was not clear which ministry would deal with its implementation. Finally, the 80

See financial memorandum, The Food Safety and Standards Bill, 2005. They are Pune, Kolkota, Gaziabad and Mysore. Source: www.fssai.gov.in (as visited on Sep. 6, 2009).
82
See supra note 44 at 155.
81

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decision seems to be in favour of the latter but with no good reasons as the food adulteration is the part of health. It is not very convincing to assign the task to a ministry which has many jobs already in hand. Actually the matter is serious enough to create an entirely new ministry of food adulteration for the implementation.

VI. Conclusion
The adage goes that it is easy to find fault than to appreciate the thin g. I don‟t completely disagree with it, especially in case of the particular Act, which has yet to come into force. The Act is answer to many problems that previously existed but the implementation part raises many speculations.

Among the prominent features is the sanction part which provides for fine as well as imprisonment. First of all, the evil of food adulteration being a socio-economic crime generates a lot of wealth and therefore the perpetrator would easily be able to pay the fine for which he becomes liable, be it 10 lakh rupees which is the highest. Secondly, the distribution of the punishments also seems odd. The manufacturing, storing, selling, distribution or importing of unsafe food carries the maximum punishment of life imprisonment and 10 lakh rupees if the activities result in death while the maximum penalty for the death of the consumer is 5 lakh rupees. Thirdly, as the socioeconomic crimes on one hand are considered to be harming the public to maximum extent and on the other hand they hardly carry the social stigma that is usually a feature in other forms of offence. The penalties will hardly solve the purpose. Therefore, along with this there should be provision for publication of the conviction so that people come to know about the perpetrator and at the same time they are also excluded from the syndicate that was working together with him. The extreme step could be blacklisting the manufacturer or seller, so that he cannot carry the business anymore.

Power given to the consumer to take the sample is not a new
feature. There are already a set of problems that he faces and that is the reason why we hardly find such steps being taken. The bigger problem is to detect or find the difference between a pure and adulterated food. General public finds it difficult to distinguish between the two.

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Therefore, this provision had been of rather no use in the past and there was no point in its retention. Instead, there should be special branch of police and inspectorate with wide power of search and seizure, which should be at strict vigil all the time.

Again there is an appreciable feature of setting the tribunal at appellate level. Such tribunals are much required for the expeditious remedy. It would have been better if the same procedure was given for the court of first instance. There is also need to reconsider the number of times the person is given the chance of appeal. There is also provision for the special courts, where the burden of proof should be shifted from the prosecution. There should be a good coordination between the investigation team and prosecution because most of the escapes in past were because of the poor link between the two. Likewise, there are speculations regarding other features too, such as the number of inspectors or their qualification and training, etc. The biggest doubt that arises is the adaptability of the Act that has been framed by taking features from other countries and especially the Codex. Are the provisions suited for the Indian conditions especially with regard to the unorganized sector? For example, section 3(s) says about „Food Safety Management System‟ which means “adoption of Good Manufacturing Practices, Good Hygienic Practices, Hazard Analysis and Critical Control Point” for the food business. These terms are not explained in the definition clause though they are extensively dealt with in the Codex Alimentarius on Food hygiene Basic Text. There are high standards laid in the Text while defining the terms as “food hygiene”, “Hazard analysis and critical control point”.83 The Codex says about the „environmental hygiene‟ where the food production should not be carried in areas where there is presence of potentially harmful substances. The equipments used should be disinfected; there should not be contamination from the soil and air; the persons working in the establishment should not be infected with any disease, personal hygiene, air ventilation, lighting, temperature control etc. With this background we can find very few establishments that fulfill the requirements if we don‟t consider the multinational set ups. These guidelines work in the western countries because they have 83

A system that identifies evaluates and controls hazards that are significant fo r food safety.

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a strong enforcement mechanism. There the businessmen have the means to maintain such guidelines as they are rich. In India the position of traders is not so good. Moreover they don‟t have the sense of hygiene.

Therefore, in spite of the best of the legislation, the result seems to be with no big change in the practice. It is because one cannot change the mind setup of the people who are illiterate and have little to think of others. This cannot be done all of a sudden but strict enforcement machinery is feasible. The need is not of a new legislation but to see whatever the provisions are, they should be strictly adhered to. At the same time the need of the hour is not an integrated law (that the Act actually is) but the integrated approach that includes the contribution from the public and NGOs84 as well. At the same time taking note of the spate of the crime, a separate Ministry should be assigned the enforcement and control.

True that the utopia of a society totally free from socio-economic crime as food adulteration is mere wishful thinking and impossible to achieve, but every step forward can be made by multiplying the efforts both in the legal, extra-legal planes and at the governmental level. „Honest Implementation‟ is the key word.

Anubha Dhulia

84

Bejon Mishra, CEO of an NGO named „Consumer Voice‟ is doing a commendable work in the concerned area.

LL.M. II Semester (Two-Year Course), Indian Law Institute, New Delhi.

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