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Madhya Pradesh High Court · body

2014 DIGILAW 1260 (MP)

Sambhagiye Nagrik Upbhokta v. Union of India

2014-10-01

S.K.GANGELE, S.K.PALO

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JUDGMENT S.K. Gangele, J. 1. This PIL has been filed by an organisation named as Sambhagiye Nagrik Upbhokta Margdarshan Manch. 2. The petitioner prayed a relief that the State Government be directed to comply the provisions of Food Safety and Standards Act, 2006 (hereinafter called as 'Act of 2006') and the rules made thereunder. The State Government shall appoint Designated Officer, Food Commissioner and Food Analyst in accordance with the provisions of the Act of 2006 and the rules made thereunder. The Food Laboratory established in the State of Madhya Pradesh be notified in accordance with law. 3. Union of India enacted the Act of 2006. The President of India granted assent to the Act on 25th August 2006. Subsequently certain provisions came into force in the year 2008, 2009 and 2010. The object of the Act is to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto. The Act is in regard to providing food and regulation of distribution, manufacture and sale of food, hence, it is an important piece of legislation because it affects the life of citizens. Section 2(h) of the Act of 2006 defines "Designated Officer", which means the officer appointed under section 36. Similarly, Section 2(j) of the Act of 2006 defines "Food Analyst" which means an analyst appointed under section 45 and Section 2(m) of the Act of 2006 defines "Food Authority", which means the Food Safety and Standards Authority of India established under Section 4. Section 2(p) defines "food laboratory", which is as under:- "food laboratory" means any food laboratory or institute established by the Central or a State Government or any other agency and accredited by National Accreditation Board for Testing and Calibration Laboratories or an equivalent accreditation agency recognised by the Food Authority under section 43." Similarly, "Food Safety Officer" means an officer appointed under section 37. 4. Grievance of the petitioner in this petition is that up till now proper Food Analyst, Food Authority, Food Safety Officer and Designated Officer have not been appointed. The State is playing with the health of the citizens. 5. 4. Grievance of the petitioner in this petition is that up till now proper Food Analyst, Food Authority, Food Safety Officer and Designated Officer have not been appointed. The State is playing with the health of the citizens. 5. The Central Government in exercise of powers conferred by Section 91 of the Act of 2006 read with Sections 5, 7, 30, 36, 37, 38, 39, 40, 41, 43, 45, 46, 47, 68, 70, 71, 73, 74, 75, 76, 77, 78, 81, 82, 83 and 84 enacted the rules named as the Food Safety and Standards Rules, 2011 (hereinafter referred to the Rules of 2011). In accordance with the Rule 2.1.2(iii)(b) of the Rules of 2011 at the time of commencement of these rules, the post of Designated Officer is held by any other officer of equivalent rank. Rule 2.1.4 of the Rules of 2011 prescribes qualification of Food Analyst. 6. The petitioner pleaded in the petition that there is only one Food Laboratory for analysis of food samples at Bhopal, but the aforesaid laboratory has not been notified by the Food Authority or it has not been accredited by any NABT, which is mandatory in accordance with Section 43(1) of the Act of 2006 and Section 4 of the Act. 7. The petitioner further pleaded that the Food Analyst has also not been appointed in accordance with the provisions of Rules of 2011. One person Mr. Meena was posted on deputation as Food Analyst for a period of one year, thereafter the period was extended, however, he can not work as Food Analyst in the State Government Laboratory, even though the deputation period of Mr. Meena was extended. Similarly the State Government has not appointed Commissioner of Food Safety in accordance with the qualification of Rules of 2011. Mrs. M. Geeta, who is working as Commissioner of Food Safety, was not the officer of the rank of Commissioner or Secretary. 8. After commencement of the Act of 2006, the Commissioner of Food Safety in exercise of powers under Section (3) of the Act, appointed the Chief Medical and Health Officer, Ex officio Dy. Drug Food and Administration as Designated Officer for whole of the districts vide notification dated 4.8.2011 w.e.f. 5th August 2012. 8. After commencement of the Act of 2006, the Commissioner of Food Safety in exercise of powers under Section (3) of the Act, appointed the Chief Medical and Health Officer, Ex officio Dy. Drug Food and Administration as Designated Officer for whole of the districts vide notification dated 4.8.2011 w.e.f. 5th August 2012. This order can only be issued for a period of one year till the appointment of full time Designated Officer, however, the full time Designated Officer has not been appointed. In accordance with the Rules of 2011, which came into effect from 5th August 2011, the State authorities are required to appoint Designated Officer at district level, however, the State Government has not appointed a single "Designated Officer" in the State and Chief Medical and Health Officer in each district has been working as Designated Officer. It is contrary to the provisions of the Rules. About the non-implementation of the statutory provisions of the Act, the food samples of food articles if they be found adulterated, have no legal force. The persons are getting benefit of the illegality. 9. The State of M.P. respondents No. 3 and 4 in their reply pleaded that in accordance with Section 43 of the Act of 2006, the Food Laboratory situated at Bhopal was established prior to coming into force of the Act of 2006, hence, as per the provisions of Section 26 of the Act of 2006, the authority is competent to continue the work of food analysis and analysis of samples in accordance with Section 23 of the Act of 2006 and Union of India has also notified the aforesaid fact vide notification dated 5th July 2011 (Annexure R/1). It is further pleaded by the State Government that for upgradation of laboratories certain amount is required and the proposals were sent to FSSAI New Delhi on 20.12.2012 and 9.1.2013 in regard to allotment of fund and the applications are pending before the government. It is further pleaded that CMHOs have been appointed as "Designated Officer" for the whole district under its jurisdiction, hence, in accordance with the Rule 2.1.2(b) of the Rules, it is not necessary to appoint a full time separate Designated Officer. In regard to Controller Food and Drug Administration, it is submitted that Mr. D.D. Agrawal of the rank of Secretary cadre has been appointed as Commissioner Food Safety vide order dated 4.12.2012. 10. In regard to Controller Food and Drug Administration, it is submitted that Mr. D.D. Agrawal of the rank of Secretary cadre has been appointed as Commissioner Food Safety vide order dated 4.12.2012. 10. In regard to appointment of Mr. Meena as Food Analyst, it is pleaded that the State Government has increased the deputation period of Mr. Meena and he has been allowed to work as Food Analyst. State Government has taken measures to appoint members of the Appellate Tribunal. A Selection Committee in this regard has been constituted. 11. Union of India in its reply pleaded that it is the duty of the State Government to implement the provisions of the Act of 2006, which is in force w.e.f. 5.8.2011, in letter and spirit. In accordance with Section 43 of the Act of 2006, the authority is under obligation to notify the food laboratories and research institution accredited by National Accreditation Board of Testing and Calibration Laboratories or any other accreditation agency for the purpose of carrying out analysis of samples by the Food Analyst. It is further pleaded that State Food Laboratory Bhopal is required to be accredited by NABL any other equivalent accreditation agency and thereafter it would be notified for carrying out the analysis of samples under the Act. As per the Rules of 2011, the officers who were holding the additional charge of Designated Officer were made eligible to continue holding the post of Designated Officer for a period of one year or till the whole time the Designated Officer is appointed having requisite qualification as prescribed under the rules. 12. It is further submitted that it is the duty of the State Government to appoint Designated Officers who could be deputed to the work of Food Safety for food items and the persons appointed by the Government as Commissioner of Food Safety must not be below the rank of Commissioner and Secretary of the State of M.P. and he has to appoint the Designated Officer, Food Analyst and Food Safety Officer as per the qualification of the Rules of 2011. The Union of India further pleaded that Food Analyst of the Food Laboratory carrying out the analysis of food samples must be qualified as specified under the rules. The Union of India further pleaded that Food Analyst of the Food Laboratory carrying out the analysis of food samples must be qualified as specified under the rules. In the return, it is further pleaded that the appointment of the officers responsible for implementation of the Act must be in accordance with the requisite qualification and experience prescribed under the Rules of 2011. Any deviation in qualification of statutory functionaries would vitiate the purpose of implementation of the Act and it is the obligation of the State Government to appoint Designated Officer and Food Safety Officer in accordance with the Act and the rules made thereunder. 13. Subsequently, the State filed an application for taking additional facts and documents on record. State pleaded that on 20.12.2012 the Commissioner Food Safety sent a letter alongwith DPR to the Director, Food Safety and Standard Authority of India, New Delhi for upgradation of the existing food safety laboratories and the total cost of the project is Rs. 14,47,20,570/-. Thereafter on 9.1.2013 reminder was sent for establishment of Food Laboratory as per the provisions of the Act of 2006. There must be 10 Divisional Laboratories and for that purpose an amount of Rs. Seven Crores per laboratory is required. The Government has taken steps to upgrade the laboratory at Bhopal and other two laboratories situate at Ujjain and Indore. 14. In regard to appointment of Food Commissioner, as per the return filed by the State Government, a Secretary level person has been appointed as Commissioner, Food Safety, hence for that purpose it is not necessary to issue any direction. 15. Section 2(p) of the Act of 2006 defines 'Food Laboratory, which has already been quoted above in the order. In accordance with the aforesaid section, the food laboratory established by the State Government has to accredited by National Accreditation Board for Testing and Calibration Laboratories or an equivalent accreditation agency. Admittedly, the Food Laboratories working at Bhopal, Ujjain and Indore have not been accredited by the National Accreditation Board, which is clear from the return filed by the Union of India and due to non-accreditation, these laboratories could not be notified. The State has sent proposals for grant of sanction of fund for the purpose of upgradation of Food Laboratories so they could be accredited in accordance with the provisions. The State has sent proposals for grant of sanction of fund for the purpose of upgradation of Food Laboratories so they could be accredited in accordance with the provisions. It is an unfortunate situation that from the last four years, the State Government and Central Governments have not taken required steps in regard to establishment of food laboratories in accordance with provisions of Section 3(p) of the Act of 2006. It shows the callus and careless duty of the government in implementation of the Act of 2006, which is an important piece of legislation in view of the food safety of the citizens. Similarly Food Safety Officer, Food Analyst and Food Authority have not been appointed in accordance with the provisions of the Section 3 of the Act of 2006. Section 43 of the Act of 2006 further prescribes recognition and accreditation of the laboratories, research institutions and referral food laboratory, which is as under:- "43. Recognition and accreditation of laboratories, research institutions and referral food laboratory.-(1) The Food Authority may notify food laboratories and research institutes accredited by National Accreditation Board for Testing and Calibration Laboratories or any other accreditation agency for the purposes of carrying out analysis of samples by the Food Analysts under this Act. (2) The Food Authority shall, establish or recognise by notification, one or more referral food laboratory or laboratories to carry out the functions entrusted to the referral food laboratory by this Act or any rules and regulations made thereunder. (3) The Food Authority may frame regulations specifying- (a) the functions of food laboratory and referral food laboratory and the local area or areas within which such functions may be carried out. (b) the procedure for submission to the said laboratory of samples of articles of food for analysis or tests, the forms of the laboratory's reports thereon and the fees payable in respect of such reports; and (c) such other matters as may be necessary or expedient to enable the said laboratory to carry out its functions effectively." 16. Section 45 of the Act prescribes Food Analysts and the qualification for the same has also been prescribed. 17. Rule 2.1.2 of the Rules of 2011 prescribes qualification of Designated Officer, which reads as under:- "2.1.2: Designated Officer 1. Section 45 of the Act prescribes Food Analysts and the qualification for the same has also been prescribed. 17. Rule 2.1.2 of the Rules of 2011 prescribes qualification of Designated Officer, which reads as under:- "2.1.2: Designated Officer 1. Qualification (i) The Designated Officer shall be a whole time Officer, not below the rank of Sub-Divisional Officer or equivalent and shall possess a minimum of bachelors' degree in Science with Chemistry as one of the subjects or at least one of the educational qualifications prescribed for the Food Safety Officer under these Rules. (ii) He shall undergo training as may be specified by the Food Authority, within a period of six months from the date of his appointment as Designated Officer. (iii) (a) persons having been appointed as Food Inspector having qualifications prescribed under the PFA Rules, 1955 or as Local Health Authority, shall be eligible for appointment as Designated Officer, subject to fulfilling such other conditions as may be prescribed for the post of Designated Officer by the State Government. (b) At the time of commencement of those rules, the post of Designated Officer is held by any other officer of equivalent rank as additional charge basis such other officer shall continue to hold such additional charge till such time a whole time Designated Officer is appointed or for a period of one year whichever is earlier." 18. Rule 2.1.3 of the Rules of 2011 prescribes qualification of Food Safety Officer and Rule 2.1.4 of the rules prescribes qualification of Food Analyst. 19. Unfortunately the State Government has not taken care to appoint the persons, who are having the qualification in accordance with the Rules of 2011. Mr. Meena, who is working as Food Analyst, was sent on deputation. He could not be said to have qualification of Food Analyst and experience of work in the State Laboratory. State has not taken care to appoint a person having required qualification for the aforesaid purpose. Due to non-action of the state authorities in appointment of qualified officers in accordance with the Act of 2006 and Rules of 2011, the persons, whose samples have been certified as adulterated, may get benefit from the court of law. This situation is alarming. The authorities can not play with the health of the citizens. Due to non-action of the state authorities in appointment of qualified officers in accordance with the Act of 2006 and Rules of 2011, the persons, whose samples have been certified as adulterated, may get benefit from the court of law. This situation is alarming. The authorities can not play with the health of the citizens. It is a statutory duty of the State to ensure that the citizens would get unadulterated food and if there was any adulteration, the responsible persons would get an adequate punishment, but unfortunately due to non implementation of the provisions of the Act of 2006 and Rules of 2011, the object to provide unadulterated food to the citizens has been frustrated. 20. In view of the aforesaid discussion, the writ petition is disposed of with the following directions:- (i) The State Government is directed to appoint Designated Officer, Food Commissioner and Food Analyst in accordance with the provisions of the Act of 2006 and the rules made thereunder. (ii) The Union of India is further directed to provide financial assistance to the State Government for establishment of Food Laboratory and upgradation of Food Laboratories in accordance with law dt. 20.12.2012 and 9.1.2013, so the existing food laboratories may be accredited by the National Accreditation Board. (iii) The Union of India is further directed to make financial assistance available to the state for the establishment of 10 Divisional Food Laboratories. (iv) The State Government is further directed to follow and implement the provisions of Act of 2006 and the rules made thereunder. (v) These directions be followed and complied with within a period of six months from the date of receipt of copy of the order. (vi) The respondent shall file compliance report in this regard before the Principal Registrar of this court.