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

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.”

Background

The Pepsico India Holdings Private Limited is the 4^th 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 1^st accused is the seller of the 2^nd accused, who holds the FSS licensee of the hypermarket from where the product was purchased. The 3^rd accused is the distributor, while the 4^th accused is the manufacturer and marketer.

The counsel for 4^th 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.

Findings

The 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 Rules, the prosecution can be initiated only when the report of the Food laboratory confirms the report of the Food Analyst and not when the reports are divergent.

Court said, “on the other hand, if the report of the Food Analyst is challenged by way of appeal under Section 46 (4) of the FSS Act by the persons mentioned in Rule 3.1.1: (1) and the report of the referral laboratory confirmed the report of the Food Analyst, then only the prosecution steps can be initiated. In other words, if the referral laboratory report is divergent from the report of the Food Analyst instead of confirming the report of the food analyst, no prosecution is possible.”

The Court pointed out this lacuna in the FSS Act and Regulations and said thus, “In other words, if the referral laboratory report is divergent from the report of the Food Analyst instead of confirming the report of the food analyst, no prosecution is possible. Such a rule may be framed for the reason that, there is no further appeal to the accused to challenge the report of the referral laboratory, if it is divergent from the report of the Food analyst. I am of the considered opinion that, there is a lacuna in the rules.”

Referring to Centre for Public Interest Litigation v Union of India, the Court stated that the State and authorities have the paramount duty to provide safe food to citizens. It stated that right to safe food is a fundamental rights enshrined under Article 21 of the Constitution of India.

The Court thus said that the lacunae in the legislation must be seriously considered by the Central government and appropriate amendments have to be incorporated. It thus directed the registry to forward a copy of this judgement to a competent authority for taking necessary steps.

"The Central Government should think seriously about this lacuna in the Act and Rules. The registry will forward a copy of this order to the competent authority of the Central government for taking appropriate steps to make necessary amendments in the Act and Rules, if the legislature and Rule making authority thinks so."

As such, the Court quashed the proceedings against the 4^th accused.

Counsel for Petitioner: Advocates Rajesh Batra, M.Gopikrishnan Nambiar, P.Benny Thomas, K.John Mathai, Joson Manavalan, Kuryan Thomas, Sandeep Gopalakrishnan

Counsel for Respondents: Additional Director General of Prosecution Grashious Kuriakose

Case Number: CRL.MC NO. 8950 OF 2016

Case Title: Pepsico India Holdings Pvt. Ltd v State of Kerala

Citation: 2024 LiveLaw (Ker) 587

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