SOCIO-ECONOMIC OFFENCES

MODULE 4: ADULTERATION RELATED OFFENCES

4.2 FOOD SAFETY AND STANDARDS ACT, 2006

PREPARED BY: ABHILIPSA MOHANTY

TEACHING ASSISTANT TO DR. SATYAJIT MOHANTY, IPS RETD.
HISTORICAL BACKGROUND
 HISTORICAL BACKGROUND

 1998: The Prime Minister's Council on Trade and Industry constituted a Subject Group on Food
and Agro Industries, which recommended the need for a single comprehensive food legislation
along with a Food Regulatory Authority.
 2004: The Joint Parliamentary Committee on Pesticide Residues, in its report, emphasized the need
to consolidate all food laws and establish a single regulatory body to ensure food safety and
public health.
 2005: The Standing Committee of Parliament on Agriculture, in its 12th Report (April 2005),
reiterated the necessity for an Integrated Food Law and urged its expeditious enactment.
 2006: Based on extensive deliberations, the Government of India introduced and enacted the Food
Safety and Standards Act, 2006, replacing multiple existing food laws.
 NEED FOR THE LEGISLATION

 The multiplicity of food laws, standard-setting bodies, and enforcement agencies resulted in
confusion among consumers, traders, manufacturers, and investors.
 Different laws prescribed varied standards for food additives, contaminants, preservatives, and other
requirements, often making the regulatory framework rigid and non-responsive to scientific
advancements.
 The existence of multiple regulatory bodies hindered the growth of the food processing
industry and was not conducive to the effective implementation of food safety standards.
 A need was felt to modernize and streamline food regulations to ensure better public health
outcomes and promote industry growth.
 OBJECTIVES OF THE 2006 ACT

 (i) To consolidate the laws relating to food.

 (ii) To establish Food Safety and Standards Authority of India for laying down science based standards for articles
of food.
 (iii) To regulate their manufacture, storage, distribution, sale and import.
 (iv) To ensure availability of safe and wholesome food for human consumption.
 The Act, apart from making more stringent provisions (e.g. prescribing higher penalties, etc.) to curb food
adulteration, also ushers in new concepts such as putting in place food safety management systems and food
safety audit to realize its ultimate goal of ensuring availability of safe and wholesome food for human
consumption, Swami Achyutanand Tirth v. Union of India, (2016) 9 SCC 699.
 MAIN FEATURES (STATEMENT OF OBJECT AND REASONS)

 “(a) movement from multi-level and multi-departmental control to integrated line of command;
 (b) integrated response to strategic issues like novel/genetically modified foods, international trade;
 (c) licensing for manufacture of food products, which is presently granted by the Central Agencies under various
Acts and Orders, would stand decentralized to the Commissioner of Food Safety and his officer;
 (d) single reference point for all matters relating to Food Safety and Standards, regulations and enforcement;
 (e) shift from mere regulatory regime to self-compliance through Food Safety Management Systems;
 (f) responsibility on food business operators to ensure that food processed, manufactured, imported or
distributed is in compliance with the domestic food laws; and
 (g) provision for graded penalties depending on the gravity of offence and accordingly, civil penalties for minor
offences and punishment for serious violations.”
Aspect FSSA 2006 PFA 1954
Objective Ensures food safety and standards through Focuses on preventing food adulteration to
scientific regulation and a unified framework. protect consumer health.
Regulatory Food Safety and Standards Authority of Enforced by local health authorities under
Authority India (FSSAI) is the apex body regulating food different departments.
standards.
Scope Covers entire food supply chain, including Primarily targets food adulteration at the
manufacturing, storage, distribution, sale, and consumer level.
import.
Nature of Law Comprehensive & Integrated – Replaces Fragmented & Outdated – Enforced by
multiple food laws with a single authority and multiple agencies, leading to confusion.
modern scientific approach.
Key Focus Areas Food safety management systems (HACCP),
Self-compliance by businesses, Covers Punishes adulteration and misbranding, Focus
genetically modified foods, functional on checking food samples to detect
foods, dietary supplements, and novel adulteration
foods
Penalties & Graded penalties based on severity of the Uniform punishment for violations, with
Enforcement offence (civil penalties for minor violations, criminal prosecution being the primary recourse.
criminal punishment for serious offences)
 DEFINITIONS (S. 3)
 (a) “adulterant” means any material which is or could be employed for making the food unsafe or sub-standard
or mis-branded or containing extraneous matter
 (g) “contaminant” means any substance, whether or not added to food, but which is present in such food as a
result of the production (including operations carried out in crop husbandry, animal husbandry or veterinary
medicine), manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food
or as a result of environmental contamination and does not include insect fragments, rodent hairs and other
extraneous matter
 (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;
 DEFINITIONS (S. 3)

 (n) “food business” means any undertaking, whether for profit or not and whether public or private, carrying
out any of the activities related to any stage of manufacture, processing, packaging, storage, transportation,
distribution of food, import and includes food services, catering services, sale of food or food ingredients;
 (o) “food business operator” in relation to food business means a person by whom the business is carried on
or owned and is responsible for ensuring the compliance of this Act, rules and regulations made thereunder;
 (q) “food safety” means assurance that food is acceptable for human consumption according to its intended
use;
 (zc) “manufacture” means a process or adoption or any treatment for conversion of ingredients into an article
of food, which includes any sub-process, incidental or ancillary to the manufacture of an article of food;
 MISBRANDED FOOD (S. 3 (ZF))
 (A) False or Misleading Representation
 It is sold or promoted with false, misleading, or deceptive claims through:
 Labels on packaging
 Advertisements

 It is sold under a name belonging to another food item.

 It is sold under the name of a fictitious manufacturer or company.
 (B) Deceptive Packaging or Labeling
 The package bears the manufacturer's name and address, but:
 The article imitates, substitutes, or resembles another food without proper labeling.
 The label contains false or misleading ingredient statements.
 The article is falsely claimed to be from a specific place or country.

 (C) Improper Labeling of Ingredients & Claims

 The package lacks a declaratory label for artificial flavors, colors, or preservatives.
 It is sold for special dietary uses but lacks required nutritional information.
 The labeling is inaccurate or not conspicuous as per legal requirements.
 UNSAFE FOOD (S. 3(ZZ))
 An article of food is considered unsafe if its name, substance, or quality is affected in a manner that renders it injurious to health, due to:
 (A) Presence of Harmful Substances
 Composed, wholly or partly, of poisonous or deleterious substances.
 Contains filthy, putrid, rotten, decomposed, or diseased animal or vegetable matter.
 Processed under unhygienic conditions or contains harmful substances.
 (B) Adulteration & Unauthorized Additions
 Substituted with inferior or cheaper substances, wholly or partially.
 Contains unauthorized additives or ingredients.
 Essential constituents removed, wholly or partially.
 Artificially coloured, flavoured, or polished to mislead consumers.
 Contains non-permitted colouring agents or preservatives.
 (C) Contamination & Improper Handling
 Infested with worms, weevils, or insects.
 Prepared, packed, or stored under insanitary conditions.
 Misbranded, substandard, or contaminated with extraneous matter.
 Contains pesticides or other contaminants beyond permissible limits.
 FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA (FSSAI)-
ESTABLISHMENT (S. 4)

 The Food Safety and Standards Authority of India (FSSAI) was established under Section 4 of the Food
Safety and Standards Act, 2006.
 The Central Government, by notification, set up FSSAI to exercise powers and perform functions under this
Act.
 Legal Status:
 A body corporate with perpetual succession and a common seal.
 Can acquire, hold, and dispose of property (movable and immovable).
 Can sue and be sued in its own name.
 Headquarters: Delhi, with regional offices across India.
 COMPOSITION OF FSSAI (SECTION 5)

 Total Members: 22 (including Chairperson).

 One-third of the members must be women.
 Key Members:
 7 Ex-Officio Members (not below Joint Secretary rank) from the Ministries of:
 Agriculture
 Commerce
 Consumer Affairs
 Food Processing
 Health
 Legislative Affairs
 Small-Scale Industries
 COMPOSITION OF FSSAI (SECTION 5)

 2 Representatives from the food industry (including one from small-scale industries).
 2 Representatives from consumer organizations.
 3 Food Scientists/Technologists.
 5 Members (on rotation every 3 years) representing different zones of India.
 2 Representatives from farmers’ organizations.
 1 Representative from retailers' organizations.

 Appointment of Chairperson:
 Appointed by the Central Government.
 Must be a person of eminence in food science or administration, with experience at Secretary level.
 FUNCTIONS OF THE CEO OF FSSAI (SECTION 10)

 The CEO is the legal representative of FSSAI.

 Responsible for:
 Day-to-day administration.
 Preparing and implementing work programs.
 Ensuring technical and administrative support to Scientific Panels.
 Overseeing the budget and financial management.
 Coordinating with Central and State Governments.
 Approving financial expenditures of FSSAI.
 Exercising powers of Commissioner of Food Safety on food safety matters.
 CENTRAL ADVISORY COMMITTEE (SECTIONS 11 & 12)

 Purpose: Ensures cooperation between FSSAI and enforcement agencies.

 Composition (Section 11):
 Representatives from food industry, agriculture, consumers, research bodies, food laboratories, and all State Food Safety
Commissioners.
 Scientific Committee Chairperson is an ex-officio member.
 Functions (Section 12):
 Advises FSSAI on work programs and priorities.
 Identifies potential food safety risks.
 Facilitates exchange of knowledge and cooperation.
 SCIENTIFIC PANELS & COMMITTEE (SECTIONS 13 & 14)

 Scientific Panels (Section 13):

 FSSAI establishes independent Scientific Panels on:
 Food Additives & Processing Aids
 Pesticide Residues & Antibiotics
 Genetically Modified Foods
 Food Contaminants
 Labelling & Packaging Standards

 Scientific Committee (Section 14):

 Composed of Chairpersons of Scientific Panels and 6 independent experts.
 Ensures scientific consistency and policy harmonization.
 DUTIES & POWERS OF FSSAI (SECTION 16)

 Regulates and monitors food manufacture, processing, distribution, sale, and import.
 Specifies standards for food safety, additives, contaminants, heavy metals, and packaging.
 Accredits food safety certification bodies and laboratories.
 Conducts surveys and audits to monitor food safety enforcement.
 Establishes procedures for risk analysis, food sampling, and recall.
 Develops public awareness programs on food safety.
 Provides scientific & technical advice to Central and State Governments.
 GENERAL PROVISIONS (SECTION 19-25)

•Section 19: No article of food shall contain any food additive or processing aid
unless permitted under this Act and regulations.
•Section 20: No article of food shall contain contaminants, naturally occurring
toxic substances, toxins, hormones, or heavy metals beyond prescribed limits.
•Section 21: No article of food shall contain pesticide residues, veterinary drug
residues, antibiotic residues, or microbiological counts beyond specified
tolerance limits; no direct use of insecticides except approved fumigants.
•Section 22: No person shall manufacture, distribute, sell, or import genetically
modified foods, organic foods, functional foods, nutraceuticals, proprietary
foods, or health supplements except as per regulations.
 GENERAL PROVISIONS (SECTION 19-25)

 Section 23: No person shall manufacture, sell, distribute, or expose for sale pre-packaged food
unless it complies with packaging and labelling regulations.
 Section 24: No advertisement shall be false, misleading, or deceptive, and no unfair trade
practice shall be used to promote food sales.
 Section 25: No article of food shall be imported into India unless it complies with this Act and its
regulations and is subject to inspection and clearance.
STATE LEVEL ENFORCEMENT, COMMISSIONER OF FOOD SAFETY OF
THE STATE

 Section 29 – Authorities Responsible for Enforcement of Act

 The Food Authority and State Food Safety Authorities are responsible for enforcing the Act.
 The Commissioner of Food Safety oversees the enforcement of food safety laws within the State.
 Food business operators must comply with food safety standards under this Act.
 The Food Authority may issue directions to State authorities regarding enforcement.
 Section 30 – Commissioner of Food Safety of the State
 The State Government shall appoint a Commissioner of Food Safety for the State.
 Functions of the Commissioner:
 Prohibit Unsafe Food – Ban the manufacture, storage, distribution, or sale of food in the state or specific areas for up to one year.
 Industry Compliance Survey – Inspect food manufacturing and processing units for compliance with food safety standards.
 Training & Awareness – Conduct training for food safety personnel and stakeholders across the food chain.
 Ensure Standard Implementation – Maintain uniform enforcement of food safety standards with transparency and accountability.
 Sanction Prosecutions – Approve legal action for offenses punishable by imprisonment.
 Other State-Assigned Functions – Perform additional duties as directed by the State Government.
 SECTION 36 – DESIGNATED OFFICER

 The Commissioner of Food Safety shall appoint Designated Officers for each district.
 The Designated Officer must be not below the rank of a Sub-Divisional Officer.
 Responsibilities include:
 Issue or cancel licenses of food business operators.
 Prohibit the sale of food that violates the Act and regulations.
 Receive and analyze food samples from Food Safety Officers.
 Recommend prosecution for offenses punishable with imprisonment.
 Sanction or initiate prosecution for offenses punishable with fines.
 Maintain inspection records and actions taken by Food Safety Officers.
 Investigate complaints regarding food law violations.
 SECTIONS 37 & 38 – FOOD SAFETY OFFICER & THEIR POWERS

 Sections 37 & 38 – Food Safety Officer & Powers of Food Safety Officer
 Food Safety Officers (FSOs) are appointed by the Commissioner of Food Safety.
 Powers of Food Safety Officers (Section 38):
 Sample Collection – Take samples of food or substances for analysis if suspected of violation.
 Seizure of Unsafe Food – Seize food that violates safety regulations and send it for testing.
 Custody of Seized Food – Store unsafe food with the business operator under a security bond.
 Inspection & Entry – Inspect places where food is manufactured, stored, or sold.
 Payment for Samples – Pay the seller the usual market price for taken samples.
 Destruction of Perishable Unsafe Food – Destroy spoiled food unfit for consumption after notifying the operator.
 Follow Legal Search Procedures – Conduct searches as per the Criminal Procedure Code.
 Seizure of Adulterants & Records – Confiscate adulterants, accounts, or documents if relevant to an investigation.
 Witness Requirement – Ensure the presence of witnesses during seizures or inspections.
 SECTIONS 45 & 46 – FOOD ANALYSTS & THEIR FUNCTIONS

 The Commissioner of Food Safety shall appoint Food Analysts to assist in enforcement.
 Functions of Food Analysts (Section 46):
 Seal Verification – Check and compare seals on received samples; report broken or unfit samples within 7 days.
 Sample Analysis – Analyze food samples sent by Food Safety Officers or authorized persons.
 Reporting Results – Submit analysis reports within 14 days:
 To the Designated Officer (for official samples).
 To the purchaser and Designated Officer (for consumer complaints).
 Delay Notification – Inform the Designated Officer and Commissioner of Food Safety if analysis takes longer than
14 days.
 Appeal Process – Appeals against the report go to the Designated Officer, who may refer it to a referral food
laboratory.
 LICENSING OF FOOD BUSINESS (SECTION 31)

 No person shall commence or operate a food business without a license.

 Petty food businesses (hawkers, stall holders, small-scale operators) are exempt but must register with the
authority.
 License applications must be submitted to the Designated Officer, who may grant or refuse the license based on
public health considerations.
 If a decision is not made within two months, the applicant may start operations, and only an improvement notice
may be issued later under Section 32.
 Licenses can cover multiple food articles and premises within the same area; separate licenses are needed for
different areas.
 If a license is denied, the applicant may appeal to the Commissioner of Food Safety.
 An improvement notice (Section 32) is a directive issued by the Designated Officer to a food business operator
who has failed to comply with food safety regulations. It specifies the grounds for non-compliance, required
corrective measures, and a compliance deadline (minimum 14 days), failing which the operator’s license may
be suspended or canceled.
 GENERAL PROVISIONS RELATING TO OFFENCES (SECTION 48)
 Rendering Food Injurious to Health
 A person renders food injurious to health if they knowingly:
 Add any harmful article or substance to food.
 Use unsafe ingredients in food preparation.
 Remove essential constituents from food.
 Subject food to unsafe processing or treatment, with the intent (knowledge) of selling or distributing it for human consumption.
 Determining Whether Food is Unsafe
 The determination of unsafe food considers:
 The normal conditions of use and handling during production, processing, and distribution.
 The information provided to consumers, including labeling and general knowledge about potential health effects.
 The probable cumulative toxic effects of the food.
 The specific health sensitivities of intended consumers, if applicable.
 Whether food quality deterioration is solely due to natural causes beyond human control.
 Explanation
 The term "injury" includes both temporary and permanent impairment.
 The term "injurious to health" shall be construed accordingly.
 GENERAL PROVISIONS RELATING TO PENALTY (SECTION 49)

 Factors Considered in Penalty Adjudication

 While determining the quantum of penalty, the Adjudicating Officer or Tribunal shall take into account
the following factors:
 The amount of gain or unfair advantage obtained as a result of the contravention.
 The extent of loss caused or likely to be caused to any person due to the violation.
 The repetitive nature of the contravention.
 Whether the contravention occurred without the knowledge of the accused.
 Any other relevant factor that may impact the penalty decision.
 OFFENCES AND PENALTIES UNDER FSS ACT, 2006

 Section 50: Selling food not of the nature or substance or quality demanded– Penalty up to ₹5 lakh (₹25,000
for petty businesses).
 Section 51: Penalty for sub-standard food – Penalty up to ₹5 lakh.
 Section 52: Penalty for misbranded food – Penalty up to ₹3 lakh.
 Section 53: Misleading food advertisements – Penalty up to ₹10 lakh.
 Section 54: Selling food with extraneous matter – Penalty up to ₹1 lakh.
 Section 55: Failure to comply with Food Safety Officer’s directions – Penalty up to ₹2 lakh.
 Section 56: Unhygienic food processing – Penalty up to ₹1 lakh.
 Section 57: Possessing adulterants – Up to ₹2 lakh (not injurious to health), up to ₹10 lakh (injurious).
 Section 58: Other contraventions – Penalty up to ₹2 lakh.
 OFFENCES AND PENALTIES UNDER FSS ACT, 2006

 Punishment for Unsafe Food (Section 59)- manufactures for sale or stores or sells or distributes or imports
any article of food for human consumption which is unsafe-
 No injury: Up to 3 months imprisonment + fine up to ₹3 lakh.
 Non-grievous injury: Up to 1 year imprisonment + fine up to ₹3 lakh.
 Grievous injury: Up to 6 years imprisonment + fine up to ₹5 lakh.
 Death: Minimum 7 years to life imprisonment + fine of at least ₹10 lakh.
 Penalty for Operating Without a License (Section 63)
 Any food business operator, except those exempt under Section 31(2), must obtain a license.
 Engaging in manufacturing, selling, storing, distributing, or importing food without a license is punishable.
 Penalty: Up to ₹10 lakh.
 COMPENSATION FOR INJURY OR DEATH OF CONSUMER (S. 65)
 If a person manufactures, sells, distributes, or imports food that causes harm, the Adjudicating Officer or
Court may order compensation:
 ₹5 lakh (minimum) for death.
 Up to ₹3 lakh for grievous injury.
 Up to ₹1 lakh for other injuries.
 Compensation must be paid within 6 months from the date of the incident.
 In case of death, an interim relief must be paid to the next of kin within 30 days.
 If convicted for grievous injury or death, the court or Adjudicating Officer may order publication of the
offender’s name, residence, offense, and penalty at their expense (47th law Commission recommendation).
 In case of grievous injury or death, the court may:
 Cancel the license of the offender.
 Order recall of unsafe food from the market.
 Order forfeiture of the establishment and property involved.
 For lesser offenses, the court may issue prohibition orders.
 ADJUDICATION OF OFFENCES

 Section 68 – Adjudication
 The State Government appoints an Adjudicating Officer (not below the rank of Additional District
Magistrate) for handling violations under the Act.
 The officer conducts inquiries, provides an opportunity for representation, and imposes penalties if a
contravention is established.
 The Adjudicating Officer has civil court powers, and all proceedings before them are considered judicial
proceedings under IPC Sections 193 and 228.
 Penalties must be imposed in accordance with guidelines under Section 49.
 FOOD SAFETY APPELLATE TRIBUNAL & ITS POWERS (S. 70-72)
 Section 70 – Establishment of Food Safety Appellate Tribunal
 Central/State Governments may establish one or more Food Safety Appellate Tribunals to hear appeals against Adjudicating
Officer’s decisions.
 The Tribunal has jurisdiction over specific matters, as notified by the Government, and is presided over by a District Judge.
 The Central Government prescribes the qualifications, tenure, salary, and appointment process for the Presiding Officer.
 Section 71 – Procedure & Powers of Tribunal
 The Tribunal follows natural justice principles and is not bound by the Civil Procedure Code (CPC).
 It has civil court powers, including:
 Summoning witnesses & documents.
 Receiving evidence via affidavits.
 Issuing commissions for examination.
 Reviewing its decisions and handling cases ex parte or by default.
 Tribunal proceedings are considered judicial proceedings under IPC Sections 193, 228, and 196.
 Appeals against Tribunal decisions can be made to the High Court within 60 days.
 Section 72 – Civil Court Jurisdiction Barred
 Civil courts cannot entertain suits or grant injunctions on matters under the jurisdiction of the Adjudicating Officer or Tribunal.
 SPECIAL COURTS & APPEALS

 Section 74 – Special Courts & Public Prosecutors

 The Central or State Government may establish Special Courts for cases involving grievous injury or death of
consumers where punishment exceeds three years of imprisonment.
 The trial of offences in Special Courts takes precedence over other pending cases involving the accused.
 A Special Court may hold proceedings at any place other than its ordinary place of sitting if deemed necessary.
 The Central or State Government shall appoint Public Prosecutors and Additional Public Prosecutors for
Special Courts. A Special Public Prosecutor may also be appointed for specific cases or groups of cases.
 The appointee must be an Advocate with at least seven years of legal experience or have held a legal position
under the Union or State Government for at least seven years.
 Section 76 – Appeals Against Special Court Decisions
 Appeals against Special Court orders must be filed in the High Court within 45 days.
 The High Court may allow late appeals if the appellant had a valid reason for the delay.
 Appeals are heard by a bench of at least two judges.
 DEFENCES IN PROSECUTION UNDER THE FSS ACT (SECTION 80)

 Defences in Prosecution Under the FSS Act (Section 80)

 (A) Defence for Publication of Advertisements
 A person can claim defence if they published an advertisement in the ordinary course of business.
 This defence does not apply if the person:
 Knew or should have known that the advertisement was illegal.
 Had previous written notice from authorities.
 Was a food business operator involved in the advertisement.
 (B) Defence of Due Diligence
 A person can claim defence if they took all reasonable precautions to prevent the offence.
 Defence may be proved if:
 The offence was caused by another person’s act or default.
 They relied on reasonable checks of the food.
 They did not import the food from another country.
 They sold the food in the same condition as purchased or in a legally compliant altered condition.
 DEFENCES IN PROSECUTION UNDER THE FSS ACT (SECTION 80)

 (C) Defence of Mistaken & Reasonable Belief Not Available

 A person cannot claim defence by arguing they had a mistaken but reasonable belief about the facts of the
offence.
 (D) Defence for Handling Food (Section 56 Violation)
 A person can defend themselves if they destroyed or disposed of unsafe food immediately after handling it
improperly.
 (E) Defence for Nature, Substance, or Quality of Food
 A food business operator cannot claim ignorance of the food’s nature, substance, or quality.
 It is not a valid defence that the buyer was not prejudiced by the sale of unsafe or misbranded food.
 M/S NESTLE INDIA LTD.V. THE FOOD SAFETY & STANDARDS
AUTHORITY OF INDIA AIR 2016 (NOC) 225 BOM
 Nestle India challenged the nationwide ban imposed by the Food Authority on its popular product Maggi Instant
Noodles.
 The order of ban was passed after the laboratory reports indicated the presence of lead in excess of
permissible limits and MSG being found in the product against declaration by the company that was “no added MSG”
in the product ( MSG- monosodium glutamate, an amino acid added for additional flavour, but has side effects)
 Bombay High Court held:
 (a) Principles of natural justice have not been followed before passing the impugned orders and on that ground
alone the impugned orders are liable to be set aside, particularly when the Petitioner - Company, one day prior to the
impugned orders, had given a Press Release that it had recalled the product till the authorities were satisfied about
safety of its product.
 (b) Secondly, we have held that the Food Laboratories where the samples were tested were not accredited
and recognized Laboratories as provided under the Act and Regulations for testing presence of lead and therefore no
reliance could be placed on the said results.
 (c) We have further held that the mandatory procedure which has to be followed as per Section 47(1) of the
Act and Regulations framed thereunder, was not followed and arbitrary.
 d) The impugned orders are held to be violative of Articles 14, 19(1)(g) of the Constitution of India.
 CONFLICT WITH INDIAN PENAL CODE

 Sec 272. Adulteration of food or drink intended for sale; punishment with imprisonment of either description for a term
which may extend to six months , or with fine which may extend to one thousand rupees or with both
 Sec 273. Sale of noxious food or drink: punishment with imprisonment of either description for a term which may
extend to six months , or with fine which may extend to one thousand rupees , or with both.
 The Allahabad High Court in M/s Pepsico India Holdings (Pvt) Ltd. & Anr. v. State of U.P. & Ors (2011 (2)
Crimes 250, 2010 (6) ALJ 30 held that- “...PFA Act was enacted for the prevention of adulteration of food, being a special
Act, it eclipsed Sections 272 and 273 of IPC. In other words, the said Act made Sections 272 and 273 of IPC redundant as
punishment provided under the PFA Act was much more than what was provided under Sections 272 and 273 IPC. Therefore,
invoking Sections 272 and 273 of the Indian Penal Code in the matter relating to adulteration of food pursuant to the impugned
Government order is wholly unjustified and non est.”
 In its 264th Report the Law Commission proposes modification of Sections 272 and 273 of the IPC so as to bring the
penal framework in it on par with the existing punishments scheme provided in the Food Act and the State
Amendments to the Code.
 The existing provisions have simply been reproduced as Sec 274 & 275 in The Bharatiya Nyaya Sanhita, overlooking the
law Commission report and of the observations of the Supreme Court.