2010] ILI Law Review 163

LAWS ON FOOD ADULTERATION: A CRITICAL STUDY

WITH SPECIAL REFERENCE TO THE FOOD SAFETY AND
STANDARDS ACT, 2006.1

I. Introduction

INDIA HAS been called the land of Annapurna. Food and water are
not only the elixir of life, but they are worshipped as gods. In spite of
this fact, the evil of food adulteration is not only present in the society
to a great extent, but its history can be traced back to the times of
Kautilya.2
Recently, during Deepawali festivities there was no dearth of news
reports on the television and the local newspapers on how the
adulteration is being done in the sweets by the businessmen. As it is
the only time that the news channels are very active educating and
informing the public, that it seems festival is the only time when such
malpractice is on. But, the reality is that we hardly consume food on
any day, which can be considered pure and unadulterated. The food
items and the ingredients that we use to prepare food contain
adulterants. During the parliamentary debates in the Lok Sabha, one of
the Members of Parliament, Mr. Shailendra Kumar, shared his view on
the seriousness of the problem, as follows:3
…there is adulteration in milk. Urea and Oxitocin are mixed in
milk which causes a great risk of abortion and impotency. I was just
going through the report that adulterated biscuits in the name of
glucose and other brands worth 25 crore were seized in Punjab.
Likewise, I would like to remind the honourable minister that the
adulteration in mustard oil in the year 1988 had resulted in spread of
the disease cancer named „dropsy‟….mixing of coal-tar dye in pulses,
tea, and coffee lead to cancer…Lead Chromite is mixed in turmeric

1
Act 34 of 2006.
2
R.P. Kagle, 4(2) The Kautilya Arthashastra 260-270 (1970); see chapter 2, s. 77.
Kagle has translated those proses into English as follows: “As to difference in weight
or measure or difference in price or quality, for the weigher and measurer who by the
trick of the hand brings about (difference to the extent of) one-eight part in( an
article)priced at one panna, the fine is two hundred (pannas)... For mixing things of
similar kindwith objects such as grains, fats, sugar, salt, perfumes and medicines the
fine is twelve pannas.”
3
21 Parliamentary Debates, Lok Sabha 390 (Jul. 26, 2006)

Electronic copy available at: http://ssrn.com/abstract=1598225

164 Laws on Food Adulteration [Vol. 1 : 1

which results in serious diseases like paralysis, anemia and abortion,

etc. Copper salt is mixed in pickle which affects kidney. Rangoli is
mixed in salt which causes stomach diseases…Injectioins are being
used in vegetables for their early growth…injections to the cows and
buffaloes to get more milk and profit…Similarly, the sweets contain a
material named Metabil Yelova road mill which carries the risk of
cancer.
As „food adulteration‟ is done in so many ways, one must precisely
know what the exact definition of the term is. The Prevention of Food
Adulteration Act, 19544 defines the terms “adulterant”5 and
“adulterated”6 in so many words. In layman‟s language it means
debasing of food article with an inferior or deleterious substance. It is
a kind of slow poisoning. It is destruction of human life.7 It is the
gravest of socio-economic crime. We call it socio-economic crime
because it is done with the purpose of attaining profit. It has the
tendency to erode national health, character and economy, in equal
measure. The adulteration, by affecting the human resource of a
nation, has direct impact on national progress and production (GDP) of
a country particularly India which is a developing country. This may
be the reason why Food Safety and Standards Act, 20068 defines the
term “unsafe food” instead of adulterated food.
The serious problem before the nation in the form of a conundrum
is that if the evil practice of adulteration can be traced back to
antiquity, then so is the legal remedy, that has always been in place.
Unfortunately, one remedy was replaced by the other with the passage
of time, without any change in the situation. As a matter of fact history
of food adulteration has been history of legislations. Going in the past,
there were rules in Arthshastra. During the British era, the Indian
Penal Code, 1860, came into force.9 The individual state laws,
imposing strict liability started coming into force since 1912. Finally,

4
Hereinafter referred to as „PFA‟.
5
S. 2(i), PFA says adulterant is “any material which is or could be employed for the
purpose of adulteration.”
6
S. 2(ia), PFA.
7
“It is often described as subtle murder practiced on community”; see Mahesh
Chandra, Socio-Economic Crime 85 (N.M. Tripathi Pvt. Ltd., Bombay, 1979).
8
Hereinafter referred to as „FSSA‟.
9
Ss. 272 and 273 of the Indian Penal Code (IPC), 1860 deal with it.

Electronic copy available at: http://ssrn.com/abstract=1598225

2010] ILI Law Review 165

the central law and the rules there under were enacted in 1954 and
1955, respectively, which is operative till date. Subsequently, a number
of orders were passed relating to fruit, meat, vegetable oil etc. In 1986,
after the enactment of Consumer Protection Act, remedy came to the
consumers by way of compensation as well, which is a codified form
of law of torts.10
Presently, the central government has enacted the FSSA, 2006,
which is the consolidation of all the existing laws on food in general,
and food adulteration in particular. On November 18, 2008 the
provisions related to the establishment of the Food Safety and
Standard Authority came into force. Till date, the Central Authority11
has been established under the Act and the enforcement of rest of the
provisions is still awaited.12 The authority is working on the Rules and
Regulations to implement the Act.13 As soon as the Act completely
comes into force, all the legislations and the orders presently in force14
including the PFA will cease to have affect.
It is evident after going through the FSSA, 2006 that it is better
than PFA in many ways, but the actual implementation is yet to be
tested which can be done only once the legislation comes into force.
Before that is done, one has to really see where the problem lies. Is it
in the law or is it in the implementation? Or is it that the solution lies
entirely elsewhere?
As FSSA, 2006 is more or less framed on the basis of international
model the direct question of feasibility of such a law in the Indian
context comes in. Does India have the required machinery to
implement the law? In other words, do we have the required quantity
and quality of laboratories which are of foremost importance to assure
the implementation of the Act? According to V.S. Deshpande J.,15 apart

10
The Consumer Protection Act, 1986 is also available to the consumers in spite of
PFA being in force.
11
Office is established in Delhi.
12
The Central Government has repeatedly assured to bring the legislation in force
very soon. Last time it was done in March, 2009. According to the assistant Director
General, Mr. Dhir Singh, the Act will become fully operational in the beginning of
2010; see The Financial Express, Mar. 15, 2009
13
As notified on www.fssai.gov.in (visited on Oct. 22, 2009 at 12:35 pm).
14
According to s. 97 of the FSSA, 2006 read with sch. II.
15
Former Chief Justice of the Delhi High Court; see the forewords to the book by
Mahesh Chandra, Socio-Economic Crime (N.M. Tripathi Pvt. Ltd., Bombay, 1979).
166 Laws on Food Adulteration [Vol. 1 : 1

from many other reasons, lack of concerted and organized opposition

by the society is the contributing factor. The battle against the socio-
economic crime in general has to be fought on legal as well as extra-
legal planes.
As we critically analyze the FSSA, 2006, we see that there are
advantages as well as certain loopholes that are yet to be filled and
some questions that have remained unanswered. The quest for pure
food is still on…

II. Food Adulteration: As Part of Different Laws

Before analyzing the FSSA, 2006 one needs to find out the remedies,
if any, provided under the other existing legislations. Starting from the
Constitution of India, right to pure food is not directly protected under
the Constitution but it can be covered under certain provisions such as
part of fundamental freedoms, the Constitution guarantees under
Article 19(1) (g) freedom of profession, trade, or business, thereby
ensuring that state cannot prevent a citizen from carrying on a
business, except by a law imposing a reasonable restriction in interest
of general public. Under Article 19(2), no such right can be enforced
where the business is dangerous or immoral. There can be restriction
on harmful trade.16
Right to food is a fundamental right under article 2117 and
similarly, right to health is also a part of right to life. It has been held
in number of cases that life is more than mere animal existence. For
example, in Kharak Singh v. State of U.P.,18 it was observed, “Article
21 mean not merely the continuance of a person‟s animal existence,
but right to the possession of his organs, his arms and legs etc.” It
cannot be argued that health is not a part of life when possession of all
organs of the body is protected by the fundamental right to life.19

16
Harishankar v. Dy. Excise & Taxation Commissioner, AIR 1975 SC 1121.
17
As recently reiterated by the Apex Court in PUCL v. Union of India, 2007 (1)
SCC 719.
18
AIR 1963 SC 1295, 1312.
19
H.B. Giri, Consumer, Crime, and Law 87 (Ashish Publishing House, New
Delhi,1987).
2010] ILI Law Review 167

On one hand there are rights then on the other hand are the duties
of the state under article 39 (e) and (f)20 and article 47 of the
Constitution to raise the level of nutrition and standard of living and to
improve public health. The Supreme Court in Vinscent v. Union of
India,21 held, “Maintenance and improvement of public health have to
rank high as this is indispensable to the very physical existence of the
community and on the betterment of these depends the building up the
society which the constitution maker envisaged, attending to public
health, in our opinion, therefore is of high priority, perhaps the one at
the top.”
Finally, according to Schedule VII, adulteration of foodstuffs and
other goods is given under entry 18 of the Concurrent List.
The adulteration of food with an intention to sell is an offence
under sections 272 and 273 of the IPC which is punishable with the
imprisonment of six months and fine. States like U.P., West Bengal
and Orissa have enhanced the maximum punishment to life
imprisonment.22 The act is punishable when adulteration makes the
food article noxious. According to Oxford English dictionary,
“noxious” means injurious, hurtful and unwholesome. In Ram Dayal v.
King Emperor,23 Privy Council held that the mixture of pig fat with
ghee would be noxious to the religion and social feeling of both
Hindus and Muslims, still it does not come under the section (as it is
not noxious to the health). Similarly presence of non-permitted red oil
solvable coal tardy, the percentage of which has not been reported, is
not noxious.
Under the Code of Criminal Procedure the offence is non-
cognizable and bailable and not compoundable. The trial can be

20
The State shall, in particular, direct its policy towards securing- (e) that the health
and strength of workers, men and women, and the tender age of children are not
abused ….and (f) that the children are given full opportunities and facilities to
develop in a healthy manner…
21
A.I.R. 1987 SC 990 at 997.
22
An interesting question that arises here is that whether the increased punishment
has lowered the rate of the cases of food adulteration in these states. This can be
found out from the data given on www.indiastat.com. If the answer is “no” then it
proves the failure of the approach and indicates that the solution lies somewhere else
and not in punishing the accused simply.
23
As cited in S.K. Sarvaria‟s (ed.), 2 Ra Nelson’s Indian Penal Code 2338
(Lexisnexis-Butterworth and Wadhwa. Nagpur, 10th edn., 2008); A.I.R. 1925 All
214(1).
168 Laws on Food Adulteration [Vol. 1 : 1

conducted by any magistrate. In U.P. and Bihar there is no period of

limitation prescribed for taking of cognizance of the offence.
According to section 455(2) of the CrPC, the court may, in the like
manner, on conviction under sections 272 and 273 of the Indian Penal
Code, order the food, drink etc. in respect of which conviction was
made, to be destroyed.
In Emperor v. Barumal Jawarnal,24 it was held that selling wheat
containing a large admixture of extraneous matters, as foreign matter is
separable and wheat is not consumed in its existing condition. There
the offence was not committed. Similarly, according to Dhawa v.
Emperor,25 the mixture of water with milk is no offence, as the mixture
is not noxious.
By going through the provisions and moreover the cases under the
sections, we can easily conclude that there are loopholes that allows
the easy acquittal of the accused. Firstly, the case will not be covered if
the article of food is not noxious and secondly, it has been difficult to
prove the intention or the knowledge to sell.
Any person committing the offence is prosecuted by the state but
the consumer who was the victim of adulteration hardly gets any relief
under the IPC. In 1986, the Consumer Protection Act26 came into force
which provided for compensation to the consumers. While the PFA
and the FSSA, 2006, which will be dsicussed shortly, are piece of
consumer legislations that specially deal with malpractice of traders
with regard to food, the CPA is an umbrella legislation, which covers
each and every good and service that a consumer buys or hires on
giving consideration. The remedy available to the consumer is
compensation under CPA. The PFA provides for punishment and
fine.27 The procedure followed here is criminal procedure. In the
FSSA, 2006 there is a unique blend of penalty in way of fine and
punishment28 and compensation.29

24
Id. at 2345; (1904) 1 CrLJ 618.
25
As cited in K.D. Gaur, A Textbook on the Indian Penal Code 350 (Universal Law
Publishing Co., New Delhi, 3rd edn., 2004); A.I.R. 1926 Lah 49.
26
Hereinafter referred to as „CPA‟.
27
PFA, s. 16.
28
Id., ss. 50-58.
29
Id., s. 59.
2010] ILI Law Review 169

J.F. Kennedy (in 1962) declared some basic consumer rights as

right to safety, right to be informed, right to choose, and right to be
heard.30 Right to redress, right to healthy environment, can be added to
it. The CPA recognizes these rights in the objectives.
The CPA is special in a way that it follows its own tribunal system
from the District Forum to National Commission from where the
appeal goes to the Supreme Court. These tribunals are established
under the article 323B of the Constitution. Section 3 of the Act says
that the provisions of the CPA are in addition to provisions of any
other all laws for the time being in force. It means that provisions of
all the laws are equally applicable for the protection of the interest of
the consumer. Therefore, CPA and the PFA are equally applicable.

The Prevention of Food Adulteration Act, 1954

A very important step towards the addressing of the problem of food

adulteration was done in the year 1954 by enacting a central legislation
on the subject keeping in view the limits of the penal code. For
example, it does not cover the mixing of the substances that are not
noxious as water in milk and stone and inferior quality grains in
pulses. Moreover, it requires proving mens rea. The Act provides for
strict liability and at the same time condition of adulterated food to be
„noxious‟ is done away with.
Prior to this there were number of state laws for each state, which
were enacted at different times and without mutual consultation
between the states. In 1937, a committee was appointed by the Central
Advisory Board of Health and it advised for the central legislation to
bring uniformity in the law. The basic idea behind is deterrent theory.
It has 25 sections and the rules were framed under it in 1955.
In Municipal Corporation of Delhi v. Surja Ram31 the object of the
Act was explained as follows:
…[T]he object and the purpose of the Act are to eliminate the
dangers to human life from sale of unwholesome article of food…it is

30
Ravulapti Madhavi, “Is Food Safety Lurking in the Food Safety and Standards
Act, 2006?”, 4(23), SCJ (Jour) 17 (2008).
31
As cited in Parkash C. Juneja, “Prevention of Food Adulteration Act and
Consumer Protection”, 8 Central Law Quarterly 371(1988); (1965) Cr.LJ. 571.
170 Laws on Food Adulteration [Vol. 1 : 1

enacted to curb the widespread evil of food adulteration and is

legislative measure for social defense. It is intended to suppress a
socio-economic mischief, an evil that attempts to poison, for monetary
gains, a very source of substance of life and well being of the
community.
The Act provides for a Central Food Laboratory32 and the Central
Committee for Food Standards. The central government is vested with
the rule-making power. As per the need, the Act was amended four
times -1964, 1971, 1976, and 1986.
Loopholes in the PFA: Roscoe Pound, while classifying the social
interests under six heads, placed public health at top of it. As already
mentioned, in India also it is one of the directive principles of the state
policy. In spite of this fact, the object of the legislations has not been
achieved yet. There can be „n‟ number of reasons behind it, but the
doubt starts from the effectiveness of the legislation itself. There are
many critics of the PFA who have pointed out a number of loopholes
in it.33 Some of the prominent ones are mentioned herein, like the Act
does not provide for the mandatory standardization of food products.34
There is no requirement for training to the food inspectors. Usually,
they don‟t know how much sample to take and in what quantity the
preservative is to be mixed in the sample because of which the samples
are usually destroyed by the time they are tested. The minimum
number of such inspectors required for the area is not given. In other
words, the inspector to the population ratio is missing in the Act.
The PFA gives right to any person to get the sample tested if he
thinks that it contains deleterious substance under section 12. But for
this he has to pass two hurdles. First, he has to inform the seller the
purpose for which he is taking the sample and second that for analysis
he has to pay the requisite fees. As far as the first issue is concerned,
no trader who is really guilty will allow the consumer to take the
sample. Secondly, though the fee is refundable if the analysis report is
positive, it is not possible for all to afford it initially, as it is usually

32
To which food samples can be referred to for final opinion in disputed cases.
33
Prominent critiques are compiled herein.
34
Even quality control under Agmark for agricultural commodities including food
item is voluntary. See, Subhash C. Sharma, “Consumer protection”, 8(4) Central
India Law Quarterly 377 (1995).
2010] ILI Law Review 171

costly affair. Moreover it is always doubtful whether the analysis will

be cent percent precise.
There is the major problem with procedural part of the Act. The
Act fails to mark distinction between the categories of adulteration and
have same punishment for all kind of adulteration.35 According to
P.A.S. Rao36 though an honest attempt has been made to classify the
penalties into seven categories, it is unintelligible and obscure. “The
procrustean cruelty is writ large in the provisions of section 16.”37
While sentencing, the judge has no discretion as there is provision of
minimum punishment. On the contrary, a burden is placed on him to
state in judgment the special and adequate reasons as to why a
particular punishment is meted out.38 Lack of coordination has been
witnessed between the food inspector and public analyst who are not
legal persons and the public prosecutor who is not technical person.
This benefits the accused.39Moreover, the magistrates usually handling
criminal cases are not specialists in food adulteration matters and at
the same time they have the mindset of giving benefit of any doubt or
any inordinate delay to the accused, which spoils the prosecution case.
On one hand we can see that the procedure adopted makes it
difficult to prove the accused guilty, on the other hand the PFA is
covered under the Probation of Offenders Act, 1958. According to
section 20AA of the PFA, the Probation of Offenders Act, 1958 and
section 360 of Code of Criminal Procedure, 1973 are applicable to the
persons convicted under the PFA. As a result of this even the
perpetrators of the heinous socio-economic crime like this, which are
covered under the strict liability, are let loose after getting caught for
the first time.
Coming to the practical side, under the present scenario the
retailers are not in the position to press the manufacturers for giving

35
Subhash C. Sharma, “Consumer Protection”, 8(4) Central India Law Quarterly
377, 381 (1995).
36
, P.S. Rao, “A Critique on the Prevention of Food adulteration Act, 1954”, 13
Chartered Secretary 827 (1983). Author is Secretary, Food Specialties Ltd., New
Delhi.
37
Ibid.
38
Ibid.
39
Supra note 34.
172 Laws on Food Adulteration [Vol. 1 : 1

guarantee. Moreover there are no facilities available to the traders to

test the purity of the articles at the time of purchase.40

III. The Food Safety and Standards Act, 2006

The Food Safety and Standards Act has been enacted to consolidate the
laws related to food. The important thing to note is that it does not deal
with the food adulteration alone. It can be easily inferred from the
broad definition of the term “unsafe food “under section 3(zz) along
with many other expressions important for laying down the standards.
Again, the Act gives a vast definition of “adulterant”.41 And at the
same time few more definitions give us a broad picture such as
“contaminant”, “extraneous matter” and “food additive”. The short
title also leads us to the same conclusion. The interpretation clause
defines “food safety” as “assurance that the food is acceptable for
human consumption.”,42 and “standard” {under section 3(zv)} as “in
relation to any articles of food means standards notified by the food
authority”. For removing any doubt the term “sub-standard” is also
defined {under section 3(zx)}.

Historical Backdrop:

The earliest mention of the comprehensive legislation on food with a

Food Regulatory Authority can be traced back to 1998 in the
recommendations of the Subject Group on Food and Agro Industries
appointed by the Prime Minister‟s Council on Trade and Industry. 43 In
2002, in the Budget Speech given by the Minister of Finance an
elaborate mention was made.44 Subsequently, a GoM was constituted

40
Emily Andrews, “Penal Law on Food Adulteration”, 8 Cochin University Law
Review 337 (1984).
41
According to s. 3(a), “…any material which is or could be employed for making
the food unsafe or sub-standard or misbranded or containing extraneous matter.”
42
S. 3(q).
43
Statement of Object and Reasons, FSSA, 2006.
44
See Government of India, Report on Pesticide Residues 147 (Parliament
Committee on Pesticide Residues , 2004); An extract, “A Multiplicity of regulations
for food standard under the Prevention of Food Adulteration Act, the food products
Order, the meat Products Order, the Bureau of Indian Standards and MMPO, affect
the food and processing sectors. They need to be modernized and converged. The
2010] ILI Law Review 173

for the purpose. This law was expected to take into account the
international scenario and modern developments in developed and
developing countries so as to create an enabling environment and
promote self-compliance by the Food Processing Industries. The
Ministry of Food Processing45 was given the responsibility to assist the
GoM.
The first meeting of the GoM was held on Jan. 27, 2003 under the
Chairmanship of the Minister of Law and Justice. On this occasion,
along with the second meeting held on March 18, 2003, there were
deliberations made on how to chalk out a common strategy for
common acceptable draft bill. It was unanimously agreed that study of
international experience can become the building block of the new
legislation and an independent developmental and regulatory authority
be first set up, by bringing the statute, to look into all the aspects of
existing food laws and commend new legislation. It was also decided
that Secretary, Ministry of Food Processing Industries would
coordinate discussion with Secretary, Law Commission. Consequently,
the Member Secretary gave its recommendations.
After all these exercises, the Ministry of Food Processing prepared
the draft Bill that was places in the Lower House on August 25, 2005
by the then Minister of State Mr. Subodh Kant Sahay. The debate was
mainly held on July 26, 2006 in the Lok Sabha and on August 1, 2006
and on August 2, 2006 in Rajya Sabha. The Bill got the President‟s
assent on August 23, 2006 and has come into force in fragments from
time to time.46 The Authority was established on November 18, 2008.
Aim of the Act is to have an integrated and modern law on food
problems and to have a central authority, which can lay down the
science-based standards for scientific development of the food
processing industry.47

prime Minister has decided to set up a Group of Ministers (GoM) to propose

legislative and other changes for preparing a modern integrated food law and related
regulations.”
45
The ministry was formed during the primeministership of Mr. Rajiv Gandhi in
Jul. 1988.
46
Ss. 4-10, 87, 88, 91 and 101 came into force on Oct. 15, 2007. Ss. 3 and 30 came
into force on Aug. 25, 2008. S. 90 came into force on Aug. 28, 2008. Ss. 16-18, 81-
86, 92 and 93 came into force on Nov. 18, 2008.
47
According to the Introduction, Statement of Object and Reason, and Preamble of
FSSA, 2006.
174 Laws on Food Adulteration [Vol. 1 : 1

The main features of the Act are: to establish an integrated line of

control and response, decentralization of licensing, single reference
point, self-compliance, making the business food operators to ensure
the quality at all the stages and graded penalties. The Act claims to be
contemporary, comprehensive, and having standards based on science
and transparency.
As the Act mentions few documents in the statement of Objects
and Reasons, which molded the draft bill, it becomes necessary to see
the Act in their light. They are discussed below.

Standing Committee of Parliament in Agriculture (2004-05)

The Ministry of Food Processing Industry constituted the standing

committee under the chairmanship of Mr. Ram Gopal Yadav. The
report of the standing committee was presented to the House on April
20, 2005. There were Five Schemes suggested.48 One of them was „the
Scheme for quality assurance, Codex standards, research and
development‟ which included „food safety and quality assurance
mechanism‟.
The committee emphasized on three points related to the FSSA,
2006. Firstly, need of value addition by food processing which is much
required for agricultural development.49 Secondly, need for uniformity
of standards, uniformity of quality, uniformity of regulations and
removal of multiplicity of legislation.50Thirdly, that the statistics of
laboratory is very grey. According to the report, even the Ministry of
Food Processing did not have its own food-testing infrastructure,
which was being managed by the Ministry of Health. Therefore, it
recommended a strong network of food testing laboratories, at least
one in each State/Region under the direct control of food processing
ministry.51

48
Government of India, Report: Standing Committee on Agriculture 4-5 (2005).
Presented on Apr. 20, 2005.
49
Id. at 1.
50
Id. at 13.
51
Id. at 27 and 43.
2010] ILI Law Review 175

Joint Committee on Pesticide Residues in and Safety Standards for

Soft Drink, Fruit Juice and Other Beverages:

The report of the Committee was presented on February 4, 2004.52 As

the title suggests, the report is mainly on pesticide residues that were
found in the cola brands and their level was 24 times more than the
permissible international limit. It mentioned the sorry state how PFA is
not having sufficient provision to fight against such unsafe food and
why we are in need of a completely new approach based on
international model. So far as the soft drinks, etc are concerned, the
Ministry of Food Processing Industries is the licensing authority and
Ministry of Health and Family Welfare is the regulatory authority.
Moreover, how the food sector is further divided between nine
ministries can be seen as given below.
Likewise, there is multiplicity of laws, enforcement and standard
setting agencies. For example the laws, other than the PFA, that are
presently in action are:
1. The Fruit Products Order, 1955.
2. The Meat Food Products Order, 1973.
3. The Vegetable Oil Products (Control) Order, 1947, etc.
Management of Food Industry under different Ministries:
MINISTRY OF MINISTRY OF MINISTRY OF FOOD &
HEALTH AND AGRICULTURE CONSUMER AFFAIRS
FAMILY WELFARE Agriculture Produce Essential Com. Act, 1955
Prevention of Food Marketing Act Standards of Weights
Adulteration Act, 1954 Milk and Milk Product &Measures Act,1976
PFA Rules, 1955 Order Packaged Commodities
Health Food Rule, 1977
Supplement Bill Consumer Protection Act,
1986
B.I.S. Act,1986
VOP Control Order, 1947
VOP (Std. of Quality),
1975
SEO control (order), 1967

52
Under the chairmanship of Mr. Sharad Pawar.
176 Laws on Food Adulteration [Vol. 1 : 1

MINISTRY OF MINISTRY OF FOOD MINISTRY OF RURAL

COMMERCE PROCESSING DEVELOPMENT
Imports & Exports INDUSTRIES Agricultural Produce
Regulations Fruit Products Order, Grading & Marketing Act,
Export Inspection 1955 1937
Agency Meat Food Products Order
Tea Board
Coffee Board
Coffee Act & Rules
MINISTRY OF MINISTRY OF MINISTRY OF HRD
FORESTS & SCIENCE (Development of Women
ENVIRONMENT &TECHNOLOGY & Child Welfare)
Trade in Endangered Atomic Energy Act, 1962 Infant Milk Substitutes,
Species Act Control of Irradiation of Feeding Bottles & Infant
Ecomark Foods Rules, 1991 Foods (Regulation of
G.M. & Organic Foods Production, Supply &
Distribution) Act, 1992-
Rules, 1993
SOURCE: ANNEXURE to Joint Parliamentary Report on Pesticide
Residue, 2004.
Apart from this many organizations viz. Bureau of Indian
Standards, Central Committee for Food Standards, Ministry of Rural
development under „Agmark‟, Export Import Council under Exim
Policy etc. lay down standards in the food sector. Then there are many
overlapping and contradictory provisions in the above-mentioned
legislations and rules and orders. The report concluded that the system
is over regulated and under administered. Further it laid down the
salient feature for the new modern integrated food law as well as the
duties of the Food Safety and standards Authority.

Recommendations of Member Secretary, Law Commission

After doing an in-depth study in the food laws of the countries53 where
there is a central food authority, secretary came up with many
suggestions. Some of them are:
53
European Union, United Kingdom, Australia, New Zealand, Malaysia, Canada,
Thailand etc.
2010] ILI Law Review 177

1. There should be civil penalties for contravention of the act

instead of criminal punishments.
2. Criminal sanctions should be restricted to contraventions of
serious nature which must be tried by special courts.54
3. The new act must, apart from establishing a Food Safety and
Standards Authority empower the Central Government to
prescribe standards for food articles.
4. The Central Government and the state government shall have
power to recall any food item posing risk to the health.
5. Contravention of provisions of the Act should be subject to
civil penalty adjudged by adjudicating officers appointed by
the state government.
6. Appeals must lie to one-man tribunals to be established by
these state governments.
7. The comprehensive standard-setting legal instrument must
expressly make it clear that the mandatory provisions will not
apply to primary food producers namely farmers.55
The practices like focus on in-process quality control rather than
product testing, compliance rather than prosecution, compounding of
minor/technical violation, high Power Screening Board to examine
cases before prosecution,56 Periodic quality audits of food factories,57
etc. were also observed by the commission. It is interesting to note
that FSSA, 2006 is mainly based on the recommendations of the
member secretary of the Law Commission.

The Codex Alimentarius

The Codex Alimentarius is a Latin term that means „Food Law or

Code‟. It is a collection of international food standards adopted by the
Codex Alimentarius Commission, which is an international body

54
Trial by the Special Court was also suggested by the Ministry of Health in their
Concept Note on amendments to PFA.
55
It is done so that their interests are not adversely affected by the proposed
enactment. However the farmers should be encouraged to voluntary comply with the
set standards. The central government can frame suitable schemes under the Act,
offering incentives to such farmers.
56
The procedure is followed in Thailand
57
The procedure is followed in Turkey.
178 Laws on Food Adulteration [Vol. 1 : 1

responsible for the execution of the Joint FAO/WHO Food Standards

Programme. FAO and WHO created the Commission in the year 1962.
The programme is aimed at protecting the health of consumers and
facilitating international trade in food.
The standards in the Codex are for all principal foods, whether
processed or semi-processed or raw. A country in any one of the ways
may accept these standards.
The Codex defines certain terms related to the processing of food.
The definitions in FSSA, 2006 are taken from the Codex. For example,
the definition of „food‟, „food additive‟, „contaminant‟, „hazard‟,
„risk‟, „risk analysis‟, „risk assessment‟, „hazard identification‟,
„hazard characterization‟, „claim‟, „consumer‟, etc.
In the Preamble to the Code of Ethics for International Trade in
Food,58 the right to standard of living adequate for the health and well
being of the individual and his family is proclaimed in the Universal
Declaration of Human Rights of the United Nations. Therefore, the
major objective of the work of Commission is to protect the health of
consumer and ensure fair practices in the trade in food.

Benefits of FSSA

According to Subodh Kant Sahay, “the Act is a historic one. It is fully

agriculture oriented and will constitute a regulatory authority that will
govern the standards and quality of food right from national level to
Panchayat level. ..Again, it is a major initiative in abolition of
inspector raj.”59 The biggest advantage it has is the mandatory
standardization it provides for food. Moreover, the liability of the
person will be civil liability which will be easier to prove. It will be the
special responsibility of the food business operator to ensure that the
articles of food satisfy the requirements of the Act at all stages of
production, etc.60 As the Act has taken inspiration from the Codex, its
standard will match the world level quality. For the first time there is a
provision for compensating the consumer who gets any injury or incur
any health hazard, along with the penalty or punishment given to the

58
1A Codex Alimentarius 17 (1999).
59
Supra note 3 at 376.
60
The FSSA, s. 26.
2010] ILI Law Review 179

perpetrator. The Act imposes responsibility on the operator of business

to recall the articles of food, if he finds that they don‟t satisfy the
standards of the Act.61 If the inspector or the food officer is found
misusing his power, there is provision to impose fine on him on the
proof of his being guilty.62 The amount of fine is Rs.10,00,00.63 Now
there will be only one Ministry looking into the whole affair instead of
nine ministries. The graded system of penalties will remove confusion
and inequality that existed before as there was same minimum
punishment for all forms of adulteration.64 In the adjudication system,
there are two types of treatment: the matters that are hazardous to the
health and those that are not. Latter will be referred to the Special
Court and later to the High Court. Farmers and the fisherman are
excluded from the purview of the Act. There is wide network of checks
and balances that have been provided in this Act. Every business
operator is required to have license or registration. Every distributor is
required to be able to identify food articles to the manufacturers and
every seller to the distributor. Standards based on science are required
to be in place that will support the scientific development of the food
processing industry. There is provision for the establishment of the
scientific panel and committees. There is a provision for improvement
notice65 to be given to the one not complying with the standards, after
non compliance of which the food safety officer can take the action.
There are so many checks to make sure that a wrong case is not made
against any manufacturer. Starting from Food Safety Officer, the
Adjudicating Officer, Food Safety Appellate Tribunal, State
Commissioner of Food Safety, Special Courts (in case of
imprisonment), and finally the High Court will provide correction if
required. The Act will include the Food distributed in the Public
Distribution System i.e. it will cover the Food Security Act, 2009.66
This is possible by virtue of section 3(n), which defines „food
business‟; it means “any undertaking, whether for profit or not and
whether public or private, carrying out any of the activities related to

61
Id., s. 28. It provides for the „recall procedure‟.
62
Id., s. 39.
63
This amount was nominal in the PFA.
64
The FSSA, ss. 48-67.
65
Id., s. 32.
66
Not brought to force yet.
180 Laws on Food Adulteration [Vol. 1 : 1

any stage of manufacture, processing, packaging, storage,

transportation, distribution of food, import and includes food services,
catering services, sale of food or food ingredients.”

IV. Loopholes in FSSA, 2006

Above mentioned benefits give a very bloomy picture but if we look

deeper the legislators seem to be overzealous in incorporating the
international standards. The main focus of the Act is on the processing
industry and the unorganized sector is completely neglected. Almost
every report says for a Central authority but doesn‟t mention how the
establishment of central authority has proved to be effective in other
countries. Some of the drawbacks are given below.
1. As the Act provides for compulsory process of registration, this
may create problem for small businessmen like hawkers and
venders.
2. There is no registration process mentioned; nor is there any
authority specified for the registration.
3. The Food Safety Officer has defined no jurisdiction for the sake of
inspection and seizer of sample.67
4. The provisions that give power to the officers to grant license, or
impose huge penalty give way to possibility of corruption.68
5. As the Act provides for both the criminal as well as civil
procedure, there is possibility of confusion as to what procedure to
be followed.
6. One year limitation period has been provided for the bringing the
case in the notice of an authority under the Act.
7. Except from the packaged drinking water, the potable water used
in the manufacture of most of the articles of food, is excluded from
the purview of the Act.69
8. Finances are lacking for the complete implementation of the Act.
According to the Financial Memorandum of the original Bill.70 The
total sum allocated for the purpose is ten crore rupees. Seven crore
67
The power is given under s. 41(1) of the FSSA.
68
The FSSA, s. 69(1).
69
PFA expressly excludes water.
70
The Food Safety and standards Bill, 2005 along with the Financial Memorandum
was introduced in the Lower House on May 22, 2005.
2010] ILI Law Review 181

have been spent on the infrastructure of the food authority and

remaining sum is kept for the establishing of laboratories, which is
highly insufficient.
9. There is no final decision as to which Ministry will see the
administration side of the Act. Is it Food Processing Ministry or the
Health Ministry that will see the implementation?
10. There are certain expressions that are not defined and that might
add to the number of litigations due to their ambiguous meaning.
For example, „safe and wholesome food for human consumption‟,
„good manufacturing practices‟, and „good hygienic practices‟.
Similarly, it is not clear as to why „contaminant‟, unlike any other
term, is not defined as the Codex defines it. It omits the intention
part of the definition.
11. The unorganized sector in India cannot be supposed to adhere to
the norms of the Act as mentioning ingredients and their
specification, etc.
12. There is no estimation of the cost to be borne by the State
Governments, which are the nodal agencies.
13. As food business includes „any undertaking whether giving profit
or not‟, this tends to include in itself and even criminalizes services
rendered by the gurudwaras, the zaket at Mosques and dargah,
bhandaras, which feed millions of poor people. To avoid such
undesirable consequences, we need laws to project the diverse food
laws and culture from the disease causing homogeneous centralize
food culture of the West.
14. There is no technical qualification attached to the ranks of the
officers who are assigned the task of issuing of license and fixing
of liability.

V. Suggestions

After thoroughly going through the provisions, I have following

suggestions to submit:
1. As the number of hawkers cannot be denied in India, there should
be representation from their association as well, in the Food
Authority.
182 Laws on Food Adulteration [Vol. 1 : 1

2. The definition of „food‟ expressly excludes the animal feed from

its purview. The fact is that whatever pesticides, insecticide etc.
gets into the animal feed and consumed by the animal (cow, goat,
etc.) becomes a part of food chain. For example, it is present in the
milk. Therefore, this should be made part of the definition.
3. Food chain from farm to the products needs to be traced. But as the
farmers are excluded from the purview of the Act,71 the tracing is
possible to the mandi only.
4. As the there is lack of proper training of procedure, both legal and
scientific or technical, there has usually been problem taking the
sample in the adequate manner and quality required for testing. For
this purpose, the Ministry of HRD can think over role of
universities, which can, after looking at the seriousness of the
affair, provide for the courses on food testing.
5. A separate Ministry must look after the matter of food adulteration
being a serious matter that affects the health of the citizens. In fact
it should continue to run under the Ministry of Health rather than
of the Food Processing, which has to deal with and look into other
relevant affairs.
6. Food adulteration is a very serious offence. Therefore, it should
make the CEOs of the company liable.
7. There should be laboratory in each district.
8. Hawkers should be brought under the ambit of the Act, as they do
the major part of the commerce. The method of testing in their case
should be made simple and non technical (not involving so many
formalities)
9. Food recall should be issued in the media to inform the citizens
and make them aware about the unsafe food.
10. The Act should have a compulsory provision for black-listing of
the companies or even publication when held guilty of the offence.
It should be made part of the punishment. Provisions for
publishing the name of the culprit is there but not in every case.
So, it should be done in every case,
11. The Codex and the Committees have suggested Confidence
Building Measures among the consumers. This can be done by
attaching the logo displaying that products are safe. This logo that
71
See the definition of „primary food‟.
2010] ILI Law Review 183

can be understood by literate or illiterate person should be made

mandatory.72

Relation of Science and Law:

As already mentioned, the main problem with the Act, whether PFA or
FSSA, 2006 is the implementation. The laboratories are important
elements towards implementation. They are the links between the
science and law, not only because they are meant to detect the
adulterant in the food but also because there should be correct
detection of the disease caused by the bad food. The problem is that
the Act does not give provision for such facility in the laboratories i.e.
detection of the disease caused. Actually this should be one of the
factors in deciding the graded punishment.
The preamble of the FSSA, 2006 goes “An Act to…establish the
Food Safety and standards Authority of India for laying down science-
based standards for articles of food.” The question that arises is, such
emphasis on science not being part of the PFA, does the new Act that
provides for the establishment of state-of-art laboratories which are
much more prompt and fast in giving reports? Will the interaction of
law with the science contribute towards the accurate reports?
The fact is that certain fields of science- epidemiology, toxicology,
and clinical medicine, among others- are centrally needed to inform
courts of whether and to what extent exposure to a product might have
contributed to someone‟s injury.73 In order to show that exposure to
toxic substances caused or contributed to the human harm, substantial,
time-consuming, and often long-term scientific studies are needed.
Human epidemiological studies are almost best kinds of evidence of
human harm from toxic exposure.74 It is difficult to identify how much
exposure was received. At the same time the studies are expensive to
conduct. More seriously, judges and larger public may not appreciate
how intensive they can be. Regrettably, too frequently, they are not
able to detect an adverse effect even when it is present.

72
Supra note 44 at 156.
73
Carl F. Cranor, Toxic Torts, Science, Law and the Possibility of Justice 1
(Cambridge University Press, NY, 2006).
74
Ibid.
184 Laws on Food Adulteration [Vol. 1 : 1

Carcinogens, reproductive toxicants and neuro-toxicants are

invisible, undetectable intruders that can have long latency period and
they rarely leave signature disease, often operates by means of
unknown complex, subtle molecular mechanisms and when they
materialize into harm, injure humans in ways that researcher might
not discover for years.75 Understanding the property of such
substances and assessing any risk that they pose, requires even more
subtle scientific expertise and studies than for other areas of inquiry.
Are the laboratories in India ready for such challenges?
We don‟t have such facilities and that is a fact. Even during the
parliamentary debates,76 Shri Ram Kripal Yadav of Patna said, “The
fact is that in many States, there are no laboratories. What to talk of
districts when there is no laboratory in the State capital. There is no
proper staff who can guide…There is a laboratory in Patna. I myself
have seen this laboratory which is in very poor condition.”
Number of laboratories for testing food: Most of the laboratories in
India have instruments that are old and are not functioning properly.
Demand for state-of-art instrument was made in the Parliament during
the debate. It was said77 that there is need to establish a large set up of
down to line infrastructure and quality labs, which are essential for the
implementation of the law. Shri Adhir Choudhary, an MP from West
Bengal said:78
Due to lack of laboratory instrumentation, due to lack of proper
training to testing personnel, due to lack of observation of rules, this
sector has suffered a lot. It is suffering because the instruments are
relatively expensive… [I]nstruments are to be imported from the
foreign countries. We have resource constraint. Here scientific
research is sporadic. Training facilities are poor and less rigorous.
The honorable member also brought to the notice of the House the
role of universities which are reluctant to offer course in food testing.
Shri Avinash Rai Khanna,79 an MP from Hoshiarpur, tried to draw
attention towards the financial aspects. The structure of authority

75
Supra note 71 at 11.
76
Supra note 3 at 435.
77
Id. at 377. See speech of Shri Subodh Kant Sahay.
78
Id. at 385.
79
Id. at 381.
2010] ILI Law Review 185

framed involves the expenditure of Rs. 10 crores.80 As much as Rs. 7

crore will be spent on the infrastructure. It is only Rs. 3 crore that will
be left out to provide for the laboratories.
This shows how infeasible is the implementation of the Act. At
present there are 72 laboratories in India at district, regional or State
level in addition to the four Central Food Laboratories set up by the
Central Government.81 Every State has one or more laboratory
depending on the need. About 12 of the laboratories are under the
control of the local bodies, whereas remaining ones are under the
administrative control of the State Government.
This shows that the number is much below the required one.
Therefore, along with increasing the number of the laboratories,
the Parliamentary Committee on Pesticide Residue in its report gave
following suggestions to the Government with regard to the labs:82
1. To constitute the Task Force of experts to assess the situation
and ensure the appropriate recognition and accreditation (from
NABL)of the laboratories. Two of the labs should have international
recognition.
2. The Indian testing methodologies should not be inferior in any
sense to that of CODEX, WHO, ISO.
3. Testing manuals should be developed for all the parameters and
the products that are covered under the Indian food laws.
4. The labs should be well equipped with the qualified personnel in
all States/UTs.
Tussle between the Ministries: The PFA and other Orders and
legislations and food laws were under the regulation of various
ministries. But it was mainly looked upon by the Ministry of Health
and Family Welfare. One of the objectives of the Act was to converge
such regulation. The question that arises is that under which Ministry it
should now be placed?
After the deliberations it was the Ministry of Food Processing that
was assigned the job of framing the legislation though it was not clear
which ministry would deal with its implementation. Finally, the

80
See financial memorandum, The Food Safety and Standards Bill, 2005.
81
They are Pune, Kolkota, Gaziabad and Mysore. Source: www.fssai.gov.in (as
visited on Sep. 6, 2009).
82
See supra note 44 at 155.
186 Laws on Food Adulteration [Vol. 1 : 1

decision seems to be in favour of the latter but with no good reasons as

the food adulteration is the part of health. It is not very convincing to
assign the task to a ministry which has many jobs already in hand.
Actually the matter is serious enough to create an entirely new
ministry of food adulteration for the implementation.

VI. Conclusion

The adage goes that it is easy to find fault than to appreciate the thing.
I don‟t completely disagree with it, especially in case of the particular
Act, which has yet to come into force. The Act is answer to many
problems that previously existed but the implementation part raises
many speculations.
Among the prominent features is the sanction part which provides
for fine as well as imprisonment. First of all, the evil of food
adulteration being a socio-economic crime generates a lot of wealth
and therefore the perpetrator would easily be able to pay the fine for
which he becomes liable, be it 10 lakh rupees which is the highest.
Secondly, the distribution of the punishments also seems odd. The
manufacturing, storing, selling, distribution or importing of unsafe
food carries the maximum punishment of life imprisonment and 10
lakh rupees if the activities result in death while the maximum penalty
for the death of the consumer is 5 lakh rupees. Thirdly, as the socio-
economic crimes on one hand are considered to be harming the public
to maximum extent and on the other hand they hardly carry the social
stigma that is usually a feature in other forms of offence. The penalties
will hardly solve the purpose. Therefore, along with this there should
be provision for publication of the conviction so that people come to
know about the perpetrator and at the same time they are also excluded
from the syndicate that was working together with him. The extreme
step could be blacklisting the manufacturer or seller, so that he cannot
carry the business anymore.
Power given to the consumer to take the sample is not a new
feature. There are already a set of problems that he faces and that is the
reason why we hardly find such steps being taken. The bigger problem
is to detect or find the difference between a pure and adulterated food.
General public finds it difficult to distinguish between the two.
2010] ILI Law Review 187

Therefore, this provision had been of rather no use in the past and
there was no point in its retention. Instead, there should be special
branch of police and inspectorate with wide power of search and
seizure, which should be at strict vigil all the time.
Again there is an appreciable feature of setting the tribunal at
appellate level. Such tribunals are much required for the expeditious
remedy. It would have been better if the same procedure was given for
the court of first instance. There is also need to reconsider the number
of times the person is given the chance of appeal. There is also
provision for the special courts, where the burden of proof should be
shifted from the prosecution. There should be a good coordination
between the investigation team and prosecution because most of the
escapes in past were because of the poor link between the two.
Likewise, there are speculations regarding other features too, such
as the number of inspectors or their qualification and training, etc. The
biggest doubt that arises is the adaptability of the Act that has been
framed by taking features from other countries and especially the
Codex. Are the provisions suited for the Indian conditions especially
with regard to the unorganized sector? For example, section 3(s) says
about „Food Safety Management System‟ which means “adoption of
Good Manufacturing Practices, Good Hygienic Practices, Hazard
Analysis and Critical Control Point” for the food business. These terms
are not explained in the definition clause though they are extensively
dealt with in the Codex Alimentarius on Food hygiene Basic Text.
There are high standards laid in the Text while defining the terms as
“food hygiene”, “Hazard analysis and critical control point”.83 The
Codex says about the „environmental hygiene‟ where the food
production should not be carried in areas where there is presence of
potentially harmful substances. The equipments used should be
disinfected; there should not be contamination from the soil and air;
the persons working in the establishment should not be infected with
any disease, personal hygiene, air ventilation, lighting, temperature
control etc. With this background we can find very few establishments
that fulfill the requirements if we don‟t consider the multinational set
ups. These guidelines work in the western countries because they have

83
A system that identifies evaluates and controls hazards that are significant for food
safety.
188 Laws on Food Adulteration [Vol. 1 : 1

a strong enforcement mechanism. There the businessmen have the

means to maintain such guidelines as they are rich. In India the
position of traders is not so good. Moreover they don‟t have the sense
of hygiene.
Therefore, in spite of the best of the legislation, the result seems to
be with no big change in the practice. It is because one cannot change
the mind setup of the people who are illiterate and have little to think
of others. This cannot be done all of a sudden but strict enforcement
machinery is feasible. The need is not of a new legislation but to see
whatever the provisions are, they should be strictly adhered to. At the
same time the need of the hour is not an integrated law (that the Act
actually is) but the integrated approach that includes the contribution
from the public and NGOs84 as well. At the same time taking note of
the spate of the crime, a separate Ministry should be assigned the
enforcement and control.
True that the utopia of a society totally free from socio-economic
crime as food adulteration is mere wishful thinking and impossible to
achieve, but every step forward can be made by multiplying the efforts
both in the legal, extra-legal planes and at the governmental level.
„Honest Implementation‟ is the key word.

Anubha Dhulia

84
Bejon Mishra, CEO of an NGO named „Consumer Voice‟ is doing a commendable
work in the concerned area.

LL.M. II Semester (Two-Year Course), Indian Law Institute, New Delhi.