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Denis Giles

10 July 2014

Created: 10 July 2014

Last Updated: 10 July 2014

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It is the fundamental right under Article 14 of the Constitution that, the State shall not deny to any person equality before Law or equal protection of the Laws within the Territory of India. "It is better that ten guilty persons escape than that one innocent suffer" which is the principle so fundamental to our criminal jurisprudence. Need to protect Good Traders Who do Fair Trade Practices.

The Administration needs to appoint all Statutory Functionaries, on a Whole Time Basis who are properly and efficiently trained and has to maintain a system control to regulate the Food Trade and ensure safe food for human consumption.

News was published in the Daily Telegrams on 08.07.2014, by the Commissioner Food Safety that The Food Safety Department is regularly carrying out inspection of all food business establishments including petty shops and street food vendors. During the inspection, it was observed that some tea stall operators are using adulterated/artificially coloured tea leaves/tea dusts for preparing tea. Artificially coloured tea is injurious to health and sale of such tea is prohibited under FSS Act, 2006. During this year till the month of May, artificially coloured tea leaves were seized from 32 tea vending premises and a sum of Rs.21000/- has been recovered as fine by compounding the offence.

However the question is how the officials have compounded the offences without corroborative evidence of a Notified Food Laboratory and the analytical reports done properly qualified / notified Food Analyst who have been appointed under the Food Safety and Standards Act 2006.

In the present case the Commissioner Food Safety, Food Safety officers and designated officers have done critical errors after sampling, who have probably no knowledge about the prosecution procedures or have been ill trained.

1.    They have by-passed the "prosecution procedure" as defined under section 42 and 42 (2) and straightway produced the traders, before the Designated officers for compounding.

2.    As per the sec 42 (2) immediately after proper sampling, the Food Safety Officer had to send the samples to the Food Analyst and only with a report they can produce before the Designated Officer or Adjudication Officer or before a Court, but they have cleverly bypassed the section 42 (2) and the Designated also illegally compounded the offences under section 69 of the FSS Act without taking due consideration of section 49.

3.    Wherein it was his duty to of the Designated Officer or Adjudication Officer to logically conclude, whether the offence is quantifiable (with proven evidence: here only Food Analyst report) / or not and any unfair advantage obtained in the trade and it was his duty to see that the Food safety officer properly followed the procedure for launching prosecution as per section 42, which have been totally neglected, willfully or ignorantly by the Designated Officers and Food Safety Officers; but the losers are the innocent Traders who do not have knowledge of prosecution procedures under Food Safety Act and consequently they have been denied the Principal of Natural Justice and Equality before Law.

4.    It is the fundamental right under Article 14 of the Constitution that, the State shall not deny to any person equality before Law or equal protection of the Laws within the Territory of India. It is better that ten guilty persons escape than that one innocent suffer which is the principle so fundamental to our criminal jurisprudence.

5.    It is also well know that the Post of the Food Analyst is lying vacant since 20 years under the Director of Health Services and without the documentary proof of adulteration the Commissioner Food safety cannot compound offence, on a mere speculation or with coercion, the Food vendor may accept adulterations. Under the Food Safety Act the Laboratory report is the first and foremost requirement to proceed with prosecution. The very act of the Commissioner Food Safety and his officers lack of sense to give natural justice and equality before Law as enshrined in our constitution is questionable.

In the Judgment on WP (PIL) No: 640/2012, the Port Blair bench of Calcutta High Court on 5^th June 2014, held that there is no proper authority appointed under the Food Safety and Standards Act in A&N Islands that means all the authorities from Commissioner Food Safety to Food Safety Officers are improper and hence the Administration is required to appoint proper and efficient statutory functionaries without any further delay.

Moreover the Supreme Court in its Judgment on 22^nd October 2013 in Writ Petition (Civil) No. 681 of 2004 on Food Safety Act held that "We are, therefore, of the view that the provisions of the FSS Act and PFA Act and the rules and regulations framed there under have to be interpreted and applied in the light of the Constitutional Principles" ... The main purpose of this programme is to protect the health of consumers, ensure fair practices in the food trade, and promote coordination of all food standards work... Authorities are also obliged to maintain a system of control and other activities as appropriate to the circumstances, including public communication on food safety and risk, food safety surveillance and other monitoring activities covering all stages of food business..."We, therefore, direct the Food and Safety Standards Authority of India, to gear up their resources with their counterparts in all the States and Union Territories and conduct periodical inspections and monitoring of major fruits and vegetable markets, so as to ascertain whether they conform to such standards set by the Act and the Rules."............. "Penal provisions are also provided in the Act.

It is, therefore, of utmost importance that the provisions of the Acts are properly and effectively implemented so that the State can achieve an appropriate level of human life and health, safeguarding the right to life guaranteed under Article 21 of the Constitution of India..." The Writ Petition is disposed of with the above directions, leaving its respondents, as already indicated, to strictly follow the provisions of the FSS Act as well as the Rules and Regulations framed thereunder.

Dinanath

Phoenix Bay