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Madhya Pradesh High Court · body

2007 DIGILAW 20 (MP)

NAGRIK UPBHOKTA MARGDARSHAK MANCH v. STATE OF M P

2007-01-09

A.K.PATNAIK, R.S.JHA

body2007
Judgment ( 1. ) THE petitioner Nagrik Upbhokta Margdarshak Manch is a Society registered under the provisions of the Madhya Pradesh Societies Registration act and has filed this writ petition as a Public Interest Litigation. The petitioner has stated in the writ petition that Parliament has enacted the Prevention of food Adulteration Act, 1954 (for short act) and the Central Government has also framed Rules under the said Act known as prevention of Food adulteration Rules, 1955 (for short rules) and the Act and the Rules provide a complete machinery for prevention of adulteration in food and provides for appointment of Food Inspectors who are to ensure that the Act and Rules are implemented. But the State Government has not appointed sufficient number of Food Inspectors and other staff and as a consequence, the provisions of the act and Rules are being flouted by unscrupulous traders and businessmen engaged in dealing with food and food products. In this context, the petitioner has stated that although there are 12 sanctioned post of Food Inspectors for district Jabalpur, not a single Food Inspector has been posted in District jabalpur and all the 12 sanctioned posts are lying vacant. ( 2. ) DURING pendency of the writ petition, the petitioner amended the writ petition and in the amended writ petition, the petitioner has stated that section 12 of the Act provides that a recognized consumer association may also get analysed an article of food and the procedure for such analysis is provided under Section 11 of the Act and the manner of packing and sealing the sample is provided in Rule 16 of the Rules. The petitioner has stated that Rule 16 of the rules provides for issue of a paper slip by the Local (Health) Authority with signatures of the competent persons for the purpose of packing and sealing the sample of food for having the article of food analysed but although the petitioner has requested the Local (Health) Authority time and again to issue such paper slip, he has not furnished any such paper slip and as a consequence, the petitioner, as a consumer association is unable to take samples of food and food products and send the same for test and analysis in accordance with the provisions of the Act. ( 3. ( 3. ) ON the facts as stated above, the petitioner has prayed that directions be issued to the respondents to ensure strict compliance of the provisions of the Act and Rules and to ensure that no person carries on business in any food or food products without obtaining a valid licence under the provisions of the Act and Rules. The petitioner has also prayed that the respondents be directed to hold regular inspection of all shops and establishments engaged in manufacture, production or sale of food and to take appropriate action against the persons involved in adulteration food. ( 4. ) A reply has been filed on behalf of the respondents stating inter alia that the Government of Madhya Pradesh has taken effective steps to prevent the unscrupulous traders and businessmen dealing in food and food products. The respondents have also stated in the reply that by notification dated 18-12-1964, the Government of Madhya Pradesh had appointed persons to be public Analysts and also declared certain areas to be local areas and also local authorities for such local areas. The respondents have specifically stated in Para 11 of the reply that the Department of Food and Drug Administration has notified / appointed 22 Food Inspectors and after imparting necessary training to them, have posted them in various local areas as is evident from the orders dated 4-2-2004 and 27-1-2005 annexed to the reply as Annexures R-7 and R-8. ( 5. ) MR. D. K. Dixit, learned Counsel appearing for the petitioner, submitted that sufficient number of Food Inspectors have not been appointed by the State Government for the different local areas and as a result, the few food Inspectors appointed by the Government of Madhya Pradesh are not being able to discharge their duties under the Act and Rules for different local areas in the State and the persons dealing with food and food products are indulging in rampant food adulteration with impunity. In this context, he referred to Section 9 of the Act providing for appointment of Food Inspectors by the State Government for the different local areas assigned to them. ( 6. ) MR. In this context, he referred to Section 9 of the Act providing for appointment of Food Inspectors by the State Government for the different local areas assigned to them. ( 6. ) MR. V. Awasthy, learned Government Advocate appearing for the respondents, on the other hand, submitted that the State Government has already carved out a separated Department of Food and Drug Administration and has appointed a number of Food Inspectors for enforcement of the aforesaid provisions of the Act and Rules. ( 7. ) WE have considered these submissions of the learned Counsel for the parties and we find that Section 9 of the Act provides that the Central government or the State Government may, by notification in the Official gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be Food Inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be. Section 2 (vii) of the Act defines a local area, to mean any area, whether urban or rural, declared by the Central Government or the State Government, by notification in the Official Gazette, to be a local area for the purposes of this Act. Section 10 of the Act deals with the powers of Food Inspectors and on reading section 10 of the Act, we find that wide powers have been vested on the Food inspectors to take samples of any article of food, to enter and inspect any place where any article of food is manufactured or stored for sale, to seize any article of food or adulterant for analysis, if such article intended for food appears to him to be adulterated or mis-branded, to destroy any article of food found unfit for human consumption, to break open the package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale, to cause any books of account or other documents found in his possession or control a manufacturer or distributor of or dealer in, any article of food. All these powers have been vested in the Food Inspectors under Section 10 of the Act with a view to enable them to enforce the provisions of the Act and rules. All these powers have been vested in the Food Inspectors under Section 10 of the Act with a view to enable them to enforce the provisions of the Act and rules. Hence, if sufficient number of Food Inspectors for different local areas in the State of Madhya Pradesh are not appointed, the provisions of the Act and rules cannot be properly enforced and unscrupulous traders and businessmen dealing with Food articles will continue to sell adulterated food stuff to the consumers. We are thus, of the view that the State Government should appoint sufficient number of Food Inspectors for different local areas for enforcing the provisions of the Act and Rules. ( 8. ) MR. Dixit, learned Counsel appearing for the petitioner, next submitted that under Section 12 of the Act, a purchaser of any article of food or recognized consumer association may also have such articles analysed by the public Analyst on payment of such fees as may be prescribed and received from the Public Analyst a report of his analysis. He pointed out that the second proviso to Section 12 of the Act makes it clear that the provisions of sub-sections (1), (2) and (3) of Section 11 relating to the procedure followed by the Food inspector, as far as may be, shall apply to a purchaser of article of food or recognized consumer association, who or which intends to have such article so analysed, as they apply to a Food Inspector, who takes a sample of food for analysis. He also pointed out that under Section 11 of the Act, one of the parts for analysis to the Public Analyst is to be sent under an intimation to the Local (Health) Authority and the remaining two parts are to be sent to the Local (Health) Authority for the purposes of sub-section (2) of Section 11 and sub-sections (2-A) and (2-E) of Section 13 of the Act. He referred to sub-section (2) of Section 11 to show that where the part of the sample sent to the Public analyst is lost or damaged, the Local (Health) Authority shall, on a requisition made to it by the Public Analyst or the Food Inspector, dispatch one of the parts of the sample sent to it under sub-clause (ii) of the said clause (c) to the Public analyst for analysis. He submitted that under Section 13 of the Act, on receipt of the report of the result of the analysis to the effect that the article of food is adulterated, the Local (Health) Authority is required to take such steps as mentioned in Section 13 of the Act. He submitted that Rule 16 of the Rules provides the manner of packing and sealing the samples and it inter alia states that a paper slip of the size that goes round completely from the bottom to top of the container, bearing the signature and code and serial number of the Local (Health) Authority, has to be pasted on the wrapper. He argued that these provisions of Section 11 of the Act and Rule 16 of the Rules make it clear that the Local (Health) Authority has to be involved in a procedure to be followed for drawing sample for analysis by a purchaser or a recognized consumer association but the experience of the petitioner is that the Local (Health)Authority does not co-operate with the purchaser of food articles or a recognized consumer association in the matter of drawing of sample for analysis in accordance with the provisions of Sections 11 and 12 of the Act and Rule 16 of the Rules. ( 9. ) MR. V. Awasthy, learned Government Advocate appearing for the respondents, on the other hand submitted that if the Local (Health) Authority is involved in drawing and analysis of samples by the purchasers of Food Articles or recognized consumer association, it may lead to several complications and for this reason, perhaps, the Local (Health) Authority does not get itself involved in the drawing and analysis of samples by purchasers of food products or recognized consumer association. ( 10. ) WE are unable to accept the aforesaid submissions of Mr. V. Awasthy because we find from the proviso to sub-section (1) of Section 20 of the act that the prosecution for offence under the Act can also be instituted by a purchaser or a recognized consumer association referred to in Section 12 of the act, if the purchaser or the recognized consumer association produces in Court a copy of the report of the Public Analyst along with the complaint. Thus, the act contemplates the institution of prosecution not only at the instance of the authorities under the Act but also at the instance of the purchaser of any article of food or a recognized consumer association referred to in Section 12 of the act. If that be so, then the purchaser of article of food or recognized consumer association referred to under Section 12 of the Act should be able to draw a sample of an article of food and send the same for analysis in accordance with the provisions of the Act and accordingly such provision has been made in Section 12 of the Act which is quoted herein below:- "section 12. Purchaser may have food analysed.-Nothing contained in this Act shall be held to prevent a purchaser of any article of food other than a food inspector [or a recognized consumer association, whether the purchaser is a member of that association, or not], from having such article analysed by the Public analyst on payment of such fees as may be prescribed and from receiving from the Public Analyst a report of his analysis : provided that such purchaser or recognized consumer association shall inform the vendor at the time of purchase of his or its intention to have such article so analysed : provided further that the provisions of sub-section (1), sub-section (2) and sub-section (3) of the Section 11 shall, as far as may be, apply to a [purchase of article of food or recognised consumer association, who or which intends] to have such article so analysed, as they apply to a food inspector who takes a sample of food for analysis: provided also that if the report of the Public Analyst shows that the article of food is adulterated, the purchaser or recognized consumer association shall be entitled to get refund of the fees paid by him or it] under this section. Explanation :- For the purposes of this section and Section 20, recognized consumer association means a voluntary consumer association registered under the Companies Act, 1956 (1 of 1956)or under any other law for the time being in force. " ( 11. Explanation :- For the purposes of this section and Section 20, recognized consumer association means a voluntary consumer association registered under the Companies Act, 1956 (1 of 1956)or under any other law for the time being in force. " ( 11. ) IT will be clear from the main provision of Section 12 of the Act that the purchaser of any article of food other than the Food Inspector or a recognized consumer association not only can have the article of food analysed by the Public Analyst on payment of fee as may be prescribed but is also entitled to receive for the Public Analyst a report of his analysis. It will also be clear from the second proviso to Section 12 of the Act that the provisions of sub-sections (1), (2) and (3) of Section 11 of the Act relating to Food Inspector, as far as may be, are to apply to a purchaser of article of food and recognized consumer association, intending to purchase an article of food to have the same analysed. Thus, as in the case of drawing of sample by a Food Inspector and analysis of such sample by Public Analyst, the Local (Health) Authority is to be involved in accordance with sub-sections (1), (2) and (3) of Section 11 of the Act, in a case of drawing of sample and analysis by a purchaser of article of food or recognized consumer association, the Local (Health) Authority has also to be involved in the same manner. Further Rule 16 of the Rules which provides that manner of packing and sealing the sample, has to be followed in all cases of packing and sealing of samples of food sent for analysis both in cases of Food Inspectors and in case of purchaser or recognized consumer association. The provisions of clause (c) or Rule 16 with regard to involvement of Local (Health) Authority, thus, apply not only to a case where the sample is sought to be packed and sealed at the instance of the Food Inspector but also in a case where the sample is sought to be sealed and packed at the instance of the purchaser of article of food or a recognized consumer association. ( 12. ( 12. ) FOR the aforesaid reasons, we allow this writ petition and direct the state Government to appoint sufficient number of Food Inspectors for local areas in the State of Madhya Pradesh as are necessary to effectively enforce the provisions of the Act and Rules. This direction will be complied with by the principal Secretary, Department of Health and Family Welfare, Government of madhya Pradesh, Bhopal, within a period of three months from receipt of a certified copy of this order from the petitioner and an affidavit/compliance report will be filed within four months from today indicating therein the Food inspector appointed for different local areas for effective implementation of the provisions of the Act and Rules. We further direct that all the Local (Health)Authorities in the State of Madhya Pradesh will discharge their respective duties as provided in Section 11 of the Act and Rule 16 of the Rules in the matter of drawing of sample, sealing of sample and analysis of sample by the Public Analyst including the duties of issuing paper slip as provided under clause (c) of Rule 16 of the Rules to purchaser of article of food and to recognized consumer association referred to in Section 12 of the Act. Writ Petition allowed.