Procedure to be followed by Food Inspectors

• When a food inspector takes a sample of food for analysis, he shall:-
• give notice in writing, then and there, of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed under section 14 A;
• except in special cases provided by rules under this Act, divide the sample, then and there, into three parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed;

  Provided that where such person refuses to sign or put his thumb impression, the food inspector shall call upon one or more witnesses and take his or their signatures or thumb impressions, as the case may be, in lieu of the signature or thumb impression of such person

• send one of the parts for analysis to the public analyst under intimation to the Local (Health) Authority; and
• send the remaining two parts to the Local (Health) Authority, for the purposes of sub-section (2) of this section and sub-sections (2A) and (2E) of section 13
• Where the part of the sample sent to the public analyst under sub-clause (i) of clause (c) of sub-section (1) is lost or damaged, the Local (Health) Authority shall, on a requisition made to it by the public analyst or the food inspector, despatch 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.
• When a sample of any article of food 1[or adulterant] is taken under sub-section (2) of section 10, 2[the food inspector shall, by the immediately succeeding working day, send a sample of the article of food or adulterant or both, as the case may be,] in accordance with the rules prescribed for sampling to the public analyst for the local area concerned
• An article of food seized under sub-section (4) of section 10, unless destroyed under sub-section (4A) of that section, and any adulterant seized under sub-section (6) of that section, shall be produced before a magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the public analyst;] Provided4 that if an application is made to the magistrate in this behalf by the person from whom any article of food has been seized, the magistrate shall, by order in writing, direct the food inspector to produce such article before him within such time as may be specified in the order.
• If it appears to the magistrate on taking such evidence as he may deem necessary :-
  • that the article of food produced before him under subsection (4) is adulterated or misbranded, he may order it-
    • to be forfeited to the Central Government, the State Government or the local authority, as the case may be; or
    • to be destroyed at the cost of the owner or the person from whom it was seized so as to prevent its being used as human food; or
    • to be so disposed of as to prevent its being exposed for sale or used for food under its deceptive name; or
    • to be returned to the owner, on his executing a bond with or without sureties, for being sold under its appropriate name or where the magistrate is satisfied that the article of food is capable of being made to conform to prescribed standards for human consumption after reprocessing, for being sold after reprocessing under the supervision of such officer as may by specified in the order :
  • that the adulterant seized under sub-section (6) of section 10 and produced before him is apparently of a kind which may be employed for purposes of adulteration and for the possession of which the manufacturer, distributor or dealer, as the case may be, is unable to account satisfactorily, he may order it to be forfeited to the Central Government, the State Government or the local authority, as the case may be.]
• If it appears to the magistrate that any such :-
  • article of food is not adulterated; or
  • adulterant which is purported to be an adulterant is not an adulterant the person from whose possession the article of food or adulterant was taken], shall be entitled to have it restored to him and it shall be in the discretion of the magistrate to award such person from such fund as the State Government may direct in this behalf, such compensation, not exceeding the actual loss which he has sustained as the magistrate may think proper.

Notes :-

• The milk samples taken were not representative samples of the milk in the drum, hence the petitioner is entitled to benefit of doubt. (Madan Lal vs. the State ) Delhi High Court, FAC 1982 (II) 300.
• Milk sample not stirred before taking sample-aquital upheld (State of Punjab vs. Inder Singh) Punjab and Haryana High Court, FAC 1984 (I) 166.
• Milk solids fat found excess of the prescribed standards and solids-not fat deficient, fault can be either due to method of sampling or in the manner of analysis (Sultan vs. State of Haryana) Punjab and Haryana High Court, FAC 1981 (II)116.
• Sample of milk was taken without stirring and homogenizing. It is bound to be deficient in essential ingredients (Tarachand vs. State of Haryana) Punjab and Haryana High Court, FAC 1985(I)6.
• Milk sample not representative as it was not stirred properly (Corporation of Nagpur vs. Premchand) Bombay High Court, FAC 1986 (I) 98.
• Taking a sample from a sealed tin of vanaspati by breaking open the seal, the food inspector had committed on illegality and is a clear violation of mode prescribed for taking the sample for analysis. (Daljit Wig. vs. State of Punjab) Punjab and Haryana High Court FAC 1986 (I) 66.
• A Sample of ajwain not made homogeneous and hence not a representative sample. This duty is cast on the food inspector and not on the vendor (Sham Sunder vs. State of Haryana) Punjab and Haryana High Court, FAC 1986 (I) 160
• Sample of meat masala was wrapped in strong thick paper and not in sealed container as required under Rules (Nasib Chand vs. State of Punjab) Punjab & Haryana High Court FAC, 1986 (I) 88, 310 (Also Pritam Singh vs. U.T.Chandigrah) FAC 1986(I) 313, (Chand Ram vs. State of Punjab) FAC 1986 (II) Punjab and Haryana High Court.
• Coffee chicory mixture in packages was not made homogeneous as putting 17 packages in each of the packet without opening and mixing. He has not complied with Section 11(1) (B) of the Act (Food Inspector vs. George) Kerala High Court, FAC 1988 (I) 360.
• Nothing on record to show that the sample was made homogeneous before its analysis by the public analyst, the report is silent and hence the result could not be implicitly acceptedbenefit of doubt given to the petitioner (Mewa Singh vs. U.T. Chaandigarth) Punjab and Haryana High Court, FAC 1982 (II) 315
• Whether violated-each large packet contained inside it fifty small packets, which also contaianed indentical label declarations. What the Food Inspector did was to sample each large packet in a separate bottle without opening them or the small packets kept inside-Section 11(1) (b) not violated even if it is conceded that the large packets inside did not contain identical label declaration- S. 11(1) (b) was found to have been violated only in the sense that the accused was prejudiced by the inaction of the Food Inspector in not opening the packets and mixing the powder to make the sample homogeneous so that result of analysis will be that of representative sample. (Food Inspector vs. Alu)- Kerala High Court,- FAC 1991 (1) 236.
• Sample- not representative-the Food Inspector did not follow the method of quartering as described in authoritaitve book Chemical Analysis of Food and Food Products (Second Edition) by Morris B Jacobs", importance of which has been very pertinently emphasized in the Division Bench Judgement of this court reported in Bhagat Ram etc. vs. State of H.P. It can, therefore, be said that the sample taken by the Food Inspector in this case is not a representative sample. (State of Himachal Pradesh vs. Sandeepan Kumar) Himachal Pradesh High Court- FAC 1991 (1) 182.

Penalties

Subject to the provisions of sub-section (1A),if any person-
• whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food :-
  • which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
  • other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder;
• whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any adulterant which is not injurious to health;
• prevents a food inspector from taking a sample authorised by this Act;
• prevents a food inspector from exercising any other power conferred on him by or under this Act;
• being a manufacturer of an article of food, has in his possession, or in any of the premises occupied by him, any adulterant which is not injurious to health;
• uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory or by a public analyst or any extract thereof for the purpose of advertising any article of food;
• whether by himself or by any other person on his behalf, gives to the vendor a false warranty in writing in respect of any article of food sold by him.

he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees:

Provided that-

• if the offence is under sub-clause (i) of cluse (a) and is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of clause (ix) of section 2; or
• if the offence is under sub-clause (ii) of clause (a), but not being an offence with repect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1A) of section 23 or under clause (b) of sub-section (2) of section 24.the court may, for any adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years and with fine which shall not be less than five hundred rupees:

Provided further that if the offence is under sub-clause (ii) of clause (a) and is with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1-A) of section23 or under clause (b) of sub- section (2) of section 24, the court may, for any adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees.] 1[(1-A) If any person whether by himself or by any other person on his behalf, imports into India or manufactures for sale or stores, sells or distributes,-

• any article of food which is adulterated within he meaning of any of the sub-clauses (e) to (l) (both inclusive) of clause (ia) of section 2; or
• any adulterant which is injurious to health; he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than one year but which may extend to six years and with fine which shall not be less than two thousand rupees;

Provided that if such article of food or adulterant, when consumed by any person is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860), he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees. 1[(1-AA) If any person is whose safe custody any article of food has been kept under sub-section (4) of section 10, tampers or in any other manner interferes with such article, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which shall not be less than one thousand rupees.

2[(1-B) If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, sells or distributes such article which is found by the magistrate before whom it is produced to be adulterated within the meaning of sub-clause (h) of clause (ia) of section 2 and which, when consumed by any person, is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860), then notwithstanding anything contained in sub-section (1-AA), he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees.]

(1-C) If any person contravenes the provision of section14 or section 14-A, he shall be punishable with imprisonment for a term which may extend to six months and with fine which shall not be less than five hundred rupees

(1-D) If any person convicted of an offence under this Act commits a like offence afterwards, then, without prejudice to the provisions of sub-section (2), the court, before which the second or subsequent conviction takes place, may order the cancellation of licence, if any, granted to him under this Act, and thereupon such licence shall, notwithstanding anything contained in this Act, or in the rule made thereunder, stand cancelled.]

If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or subsequent conviction takes place to cause the offender's name and place of residence, the offence and the penalty imposed to be published at the offender's expense in such newspapers or in such other manner as the court may direct. The expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine.

Power of court to try cases summarily

Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 0f 1974) all offences under sub-section (1) of section16 shall be tried in summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of section 262 to 265 (both inclusive) of the said Code shall, as fas as may be, apply to such trial: Provided that in the case of any conviction in summary trial under this section, it shall be lawful for the magistrate to pass a sentence of imprisonment for a term not exceeding one year; Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the magistrate that the nature of case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is , for any other reason, undersirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.

Notes :-

• Milk sample deficient in solids-not-fat by 1.3 per cent-a marginal deficiency-the fat content was in excess of the standard prescribed-a case fit for benefit to the applicant under the proviso of Section 16(1) of the Act (Kundan Singh vs. State of U.P.) Allahabad High Court, FAC 1982 (I) 247.
• Every offence under s. 16 in the first instance to be tried in a summary way. (Piare Lal vs. State of Haryana)- Punjab and Haryana High Court-FAC 1991 (1) 162.
• Magistrate started the case as a warrant trial and framed charges-magistrate at a later stage found that he had adopted a wrong procedure and started a fresh trial as a summary case- Held once the Magistrate had adopted the procedure of a warrant trial, he had no power under the Code of Criminal Procedure to recall that order to wash off the charge-sheet and start retrial.(Ramesh Prasad and another vs. State of Haryana) Punjab and Haryana High Court-Fac 1991 (I) 168.
• The trial magistrate neither applied his mind that grater sentence was to be awarded to the offender, than could be awarded as a result of summary procedure, nor, any such order was passed in writing. It was, thus, obligatory on the part of the trial Magistrate to try accused summarily, and follow appropriate procedure in that regard. Thus, in the instant case the trial which was held as a warrant case was not in accordance with law. (Mohan Lal vs. State of Haryana) -Punjab and Haryana High Court-FAC 1991 (I) 110
• Trial-as a warrat case-illegal- the case under Section 16(1) of this Act shall be tried in a summary manner by the Judicial Magistrate unless during the pendency of the case he feels that under the circumstance of the case a sentence of more than one year is warranted. the Trial Court has not recorded any such order of trying this case as a warrant case -the trial stands vitiated on this score alone. (Mahinder Singh vs. State of Haryana) Punjab and Haryana High Court-FAC 1991 (1) 164
• The legislature intended that all offences under section 16(1) of the Act be tried summarily by specially authorised Magistrate, unless such a Magistrate in writing opines that the accused deserved greater dose of sentence and so he be tried in accordance with the procedure prescribed by Criminal Procedure Code. But the Judicial Magistrates can hold summary trial only if they are specially so empowered. (Naresh Kumar vs. State of Haryana and another) - Punjab and Haryana High Court-FAC 1991(1)82.
• Summary Procedure - failure to follow - trial in violation of the procedure would be illegal and not merely irregular. (Mohan Lal vs. State of Haryana) Punjab and Haryana High Court-FAC 1991 (1) 110
• Retrial ordered on 16th Feb. 1990-sample of milk taken on 26th February, 1986-procedure of warrant case adopted held retrial abuse of the process of court (Krishan Lal vs. State of Haryana) Punjab and Haryans High Court - FAC 1991 (1) 101.
• Validity of -case remanded to the trial for retrail in conformity with summary procedure after six years-Held not fair to order retrial after remand and appropriate orders in such cases would be to record acquittal of the accused (Ramesh Kumar vs. State of Haryana) Punjab and Haryana High Court - FAC 1991 (1) 209
• Summary trial- procedure - violated -in the present case the trial Magistriate neither applied his mind that greater sentence was to be awarded to the offender, than could be awarded as a result of summary procedure, nor any such order was passed in writing. It was, thus, obligatory on the part of the trial magistrate to try the accused summarily, and follow appropriate procedure in that regard. Thus in the instant case, the trial, was not in accordance with law. (Ashok Kumar vs. State of Haryana) Punjab and Haryana High Court-FAC 1991(1)319
• Procedure not followed-after several years at the stage of final arguments the sub-divisional Judicial Magistrate passed the impugned order and wanted that procedure for summary trial may be adopted-the petitioner should not be required to undergo the agony of the trial afresh-prosecution quashed. (Babu Ram vs. State of Haryana) Punjab and Haryana High Court-FAC 1991(1) 334.
• Trial -held as a warrant case-not in accordance with law-failure on the part of the trial court to follow procedure meant for summary trial goes to the root of the case (Jaswant singh vs. U.T. Chandigarth) Punjab and Haryana High Court - FAC 1991 (1) 98.
• Failure on the part of the trial to follow procedure meant for summary trial goes to the root of the case-trial which is held in violation of the procedure, would be illegal, and not merely irregular-in the present case the trial magistrate neither applied his mind that greater sentence was to be awarded to the offender than could be awarded as a result of the summary procedure, nor any such order was passed in writing-obligatory on the part of the trial Magistrate to try the accused summarily, and follow appropriate procedure in that regard-the trial which was held as a warrant case, was not in accordance with law, (Japial vs. State of Haryana) Punjab and Haryana High Court-FAC 1991 (1) 33.
• Not in accordance with law-the trial magistrate neither applied his mind that greater sentence was to be awarded to the offender, than could be awarded as a result of the summary procedure, nor any such order was passed in writing. It was, thus, obligation on the part of the trial magistrate to try the accused summarily, and follow appropriate procedure in that regard. Thus, in the instant case, the trial, which was held as a warrant case, was not in accordance with law-the trial, which is held in violation of the procedure would be illegal, and not merely irregular, (Giridhar Lal vs. The Govt. Food Inspector) Punjab and Haryana High Court - FAC 1991 (1) 26.
• To be summary -failure on the part of the trial court to follow procedure meant for summary trial in the instant case goes to the root of the case. (Piare lal vs. State of Haryana) Punjab and Haryana High Court - FAC 1991 (1) 162.
• Protracted trial - Petitioners have a right to a speedy trial and the case should not linger on for years and the petitioner should not be made to suffer the agony of a protracted trial. (Ramesh Prasad and another vs. State of Haryana) Punjab and Haryana High Court - FAC 1991 (1) 168
• Remand Order- whether could be passed after 13 years of the taking of sample-in a case of present nature when the accused petitioner is a petty milk-vendor and the sample of milk was taken from his possession on 12th May, 1976 almost more than 13 years ago, the learned Sessions Judge should not have remanded the case back to fresh trial to the learned trial court. In this case, the criminal trial had remained pending for six years. The accused had to appear in the Court on all dates on which the case is fixed and has to incur expenses as the trial did not conclude within the reasonable time. Therefore, in a case of present nature, if 13 years have elapsed and if by the time the learned Appellate Court decides the case, 12 years elapsed, it is not a case for exercise of discretion of the learned Session s Judge when he ordered for remand of the case. (Man Singh vs. State of Rajasthan) Rajasthan High Court-FAC 1991 (1) 102.
• The occurrence took place about more than 8 years back. Records show that the appellant has already suffered a part of the imprisonment - no useful purpose would be served in sending the appllant to jail at this point of time for undergoing the remaining period of the sentence though ordinarily in an antisocial offence punishable under the Prevention of Food Adulteration Act the Court should take strict view of such matter. (Ram Lal vs. State of Haryana) Punjab and Haryana High Court - FAC 1991 (1) 316.