SOP FOR ENFORCEMENT SAMPLING AND PROSECUTION/ADJUDICATION

1. Procedure for taking sample and manner of sending it for analysis (Section 47
of FSS Act and Rule 2.4.1 of FSS Rules)

(i) FSO, before lifting the samples, must serve a notice to the FBO in Form V-A.
(ii) In case the FBO informs the FSO that the product has been obtained from a
particular manufacturer, distributor or supplier, notice in form A shall also be
given to such manufacturer, distributor or supplier, as the case may be.
(iii) FSO must call one or more witnesses at the time of lifting samples. The
signatures of the witnesses must be taken on the required forms and all
relevant documents.
(iv) FSO must pay the FBO for such samples. The price must be the same as the
price at which the article is sold to the public.
(v) Sample shall be divided into four parts.
(vi) The sample must be taken in clean dry bottles or jars or in other suitable
containers which must be closed to prevent leakage, evaporation or to avoid
entrance of moisture in case of dry substance and must be carefully sealed
(vii) All bottles or jars or other containers containing the samples for analysis must
be properly labeled and the parcel must be properly addressed. The label on
any sample of food sent for analysis must bear

a. Code number of the sample

b. Name of the sender with his official designation
c. Date and place of collection
d. Nature of articles being sent for analysis
e. Nature and quantity of preservative, if any, added to the sample

(viii) In case the sample is drawn from an open container, another sample of the
same commodity should also be drawn from a sealed container of the said
commodity and also sent to Food Analyst and it will be informed to the Food
Analyst that this particular sample is from a sealed container.
(ix) In case the sample from the open container is found to be non-conforming and
the sample from the sealed container is found to be conforming the retailer is
liable to explain this discrepancy.
(x) All the samples are to be paper sealed.
(xi) If it is not possible to maintain the sample in a condition to render it suitable
for analysis the FSO may add a preservative to it as prescribed from time to
time in the regulations, for the purpose of maintaining it in a condition

1|Page
 suitable for analysis. This should not be done in cases where the sample is
meant for microbiological testing/analysis. Whenever any preservative is
added to a sample, the nature and quantity of the preservative added must be
(xii) Preferably, samples of perishable products like milk should be temperature
controlled. The storage condition will be determined by the temperature
control required for individual products.

Perishable - Sample storage under chilled or frozen condition as the

product demands. Ice packs can be used during transportation and
temperature is to be maintained between 4-6⁰C.

Non-perishable - Storage of non-perishables should maintain the

originality of the sample as is during the sampling conditions.
Transportation should be done at temperatures not more than 40C.
Care should be taken to provide maximum protection from pilferage.

If, however, it is not possible to control the temperature of milk,

preservatives like formalin may be added to extend shelf life.

2. Dispatch of samples

(i) The sealed container of one part of the sample along with memorandum in
Form VI must be sent in a sealed packet to the Food Analyst under such
condition as may be necessary to retain the integrity of the sample. The FSO
must also send a specimen impression of the seal used to seal the packet to
the Food Analyst.
(ii) The sealed container of the second and third parts of the sample and two
copies of memorandum in Form VI must be sent to the DO by any suitable
means.
(iii) At the time of lifting of samples, the FBO can request in writing to the FSO to
send sealed container of the fourth part of the sample and a copy of
memorandum in Form VI to a NABL accredited/FSSAI notified laboratory
along with the prescribed fee payable by FBO. The FSO must then send the
sample to such lab provided it is within the state or in a neighboring state
under intimation to Designated Officer. The fourth part of the sample can be
deposited with the DO if the FBO does not request to send the sample to an
accredited lab.

2|Page
3. Analysis of food samples by Food Analyst (Section 46 of FSS, Act and FSS, Rule
2.4.2)

(i) Food Analyst will check and record the condition of the seal.
(ii) If the Food Analyst receives a sample container in broken condition, he will
request the DO within 7 days of receiving the broken sample, to send him the
second sample for the purpose of analysis. Once the DO receives such a
request from the Food Analyst, he must immediately forward the
uncompromised part of the sample to the Food Analyst.
(iii) On receipt of the sample, the Food Analyst shall analyse it or cause it to be
analysed within 14 days and send the analysis report under his signatures
mentioning the method of analysis to Designated Officer. The analysis report
shall be as per Form VII A and four copies of the same shall be sent to the
Designated Officer.
(iv) The Designated Officer shall keep two copies of analysis report, send one copy
to Food Safety Officer for record and one copy to Food Business Operator from
whom the sample was taken.

4. Action by Designated Officer on the report of Food Analyst (FSS, Rule 2.4.3)

(i) DO will analyze the Food Analyst report to determine whether an offence has
been committed under the FSS Act. If the DO believes an offence has been
committed, he will determine whether the offence is punishable by
adjudication or whether it is punishable by prosecution.
(ii) If the DO is of the opinion, for reason(s) to be recorded in writing, that the
report delivered by the Food Analyst is erroneous, he must forward one of the
parts of the sample kept with him to the referral laboratory for analysis.
(iii) FBO can file an appeal before the Designated Officer in Form VIII within 30
days of receipt of the Food Analyst Report. The DO will give an opportunity
of hearing to the FBO and shall decide on such appeal within 30 days. If the
Designated Officer so decides, he may forward one part of the sample to the
referral lab for opinion and the report of the referral laboratory in this matter
shall be final.

5. Liability of the manufacturers, packers, wholesalers, distributors and sellers

(i) 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 thereunder.

3|Page
 (ii) 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 article 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 thereunder; or
(f) received by him with knowledge of being unsafe.

(iii) 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.

6. Procedure for launch of Adjudication/Prosecution (Section 42 FSS Act and 3.1

of FSS, Rule)

(i) If in the report of Food Analyst the sample is found to be not conforming to the
provisions of Food Safety and Standards Act and the Regulations made therein
and no appeal has been filed by the FBO then DO shall decide upon
adjudication/prosecution within a period of 14 days from date of receipt of Food
Analyst Report.

(a) If the contravention is punishable only with fine under the FSS Act, the
DO shall authorize the FSO to file an application preferably within 14
days in the court of Adjudicating Officer for adjudication of the offence
against the FBO. The suggested format for such an application is at
Annexure-A.

An appeal against the order of the Adjudicating Officer can be made

before the Appellate Tribunal within 30 days from the date on which
copy of the order of the Adjudicating Officer is received.

4|Page
 (b) In respect of contravention punishable with imprisonment under the
FSS Act, the Commissioner of Food Safety shall decide, as per the
gravity of offence, whether the matter be referred to –

a court of ordinary jurisdiction in case of offences punishable

with imprisonment for a term up to three years;

or

a Special Court in case of offences punishable with

imprisonment for a term exceeding three years 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.

(c) The commissioner of Food Safety shall communicate his decision to the
DO and the concerned FSO 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 of the Act.

(ii) Notwithstanding anything contained in this Act, no court shall take

cognizance of an offence under this Act after the expiry of the period of one
year from the date of commission of an offence: Provided that the
Commissioner of Food Safety may, for reasons to be recorded in writing,
approve prosecution within an extended period of up to three years”.

5|Page
 Annexure A

Suggested format for application to be filed by FSO with Adjudicating officer to initiate
adjudication

To

Date
---------
Adjudicating Officer
----------- District
------- State

I, Food Safety Officer of ------------- area have been authorised by the Designated
Officer of ---------- area to file this application before -------------, Adjudicating Officer of ---
--------- area vide letter no ------------ dated --------- (dd/mm/year).

2. In exercise of the powers vested in the Designated Officer pursuant to Rule 3.1.1 of
the Food Safety and Standards Rules 2011 and based on a review of the Food Analyst’s
Report number ------- dated ------, the Designated Officer has determined that an alleged
offence has been committed by ----------------- (name), license/ registration number --------
----------, with food premises at ---------------- under Section ----------- of the Food Safety and
Standards Act 2006.

3. The Adjudicating Officer is requested to take cognizance of this application and

initiate adjudicating procedures under Section 68 of the Food Safety and Standards Act 2006
forthwith. Copies of the relevant documents are enclosed for your reference.

(Signature)
Food Safety Officer

CC: (i) Designated Officer

(ii) Food Safety Commissioner

Enclosures:

(i) Copy of DO’s written instructions to initiate adjudication

(ii) Copy of Food Analyst’s Report

6|Page
(iii) Copy of Forms

7|Page
 Details of Offences and Penalties under FSS, Act

Offence Persons Imprisonment Fine (Rs.) Petty

Section covered Manufacturer

- 2Lakhs Penalty < Rs.

50 Food not of Seller
quality 25,000/-
demanded by
purchaser;

Not in
compliance with
the Act

- 5 Lakhs -
51 Sub-standard Manufacturer,
Seller, Storage,
food
Distributor,
Importer
- 3 Lakhs -
52 Misbranded food -do-

Misleading - 10 Lakhs -
53 advertisement: Publisher or
any person
False involved in
description; publishing
Or
Nature or quality
or substance;

- 1 Lakhs -
54 Food contains Manufacturer,
extraneous Seller, Storage,
matter Distributor,
Importer
- 2 Lakhs -
55 Failure to comply Food business
with FSO operator or
direction importer

Unhygienic or - 1 Lakhs -
56 unsanitary: Manufacturer
or processor
Processing; or
Manufacture

8|Page
 Possessing Food Manufacturer, -
57 adulterant Seller, Storage, Injurious to -
Distributor, health -10
Importer Lakhs;
Non-
injurious to
health- 2
Lakhs

Unsafe food Manufacturer, 1 Lakhs

59 Seller, Storage, No injury – 6 -
Distributor, months 3 Lakhs
Importer
Non-grievous
5 Lakhs
injury – 1 year;
Grievous – 6 10 Lakhs
years;
Death – 7 years
to Life
imprisonment
Interference with Any person 6 months 2 Lakhs -
60 seized items
Supply of false Any person so 3 months 2 Lakhs -
61 information directed
Obstruction or Any person 3 months 1 Lakhs -
62 impersonation of
FSO without
reasonable
excuse
Carrying on Any person or 6 months 5 Lakhs Exempt
63 business without Food business
license operator
Where no Any person - 2 Lakhs -
58 specific penalty contravening
provided

Subsequent Any person - Twice the -

64 offences contravening punishment
with
further
fine/ day

9|Page