ANALYSIS OF FOOD
8. Public Analysts —
The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be public analysts for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be:
Provided that no person who has any financial interest in the manufacture, import or sale of any article or food shall be appointed to be a public analyst under this section:
Provided further that different public analysts may be appointed for different articles of food.
Section 8 postulates that it is open to the State Government to appoint more than one Public Analyst to any local area or areas and both would co-exist to have power and jurisdiction to analyse an article or articles of food covered under the Act to find out whether the same is adulterated; State of U.P. v. Hanif, AIR 1992 SC 1121.
9. Food Inspectors —
(1) The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be food inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be:
Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be appointed to be a food inspector under this section.
(2) Every food inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860) and shall be officially subordinate to such authority as the Government appointing him, may specify in this behalf.
10. Powers of food inspectors —
(1) A food inspector shall have power—
(a) to take samples of any article of food from—
(i) any person selling such article;
(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee;
(iii) a consignee after delivery of any such article to him; and
(b) to send such sample for analysis to the public analyst for the local area within which such sample has been taken;
(c) with the previous approval of the Local (Health) Authority having jurisdiction in the local area concerned, or with the previous approval of the Food (Health) Authority, to prohibit the sale of any article of food in the interest of public health.
Explanation — For the purposes of sub-clause (iii) of clause (a), "consignee" does not include a person who purchases or receives any article of food for his own consumption.
(2) Any food inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis:
Provided that no sample of any article of food, being primary food, shall be taken under this sub-section if it is not intended for sale as such food.
(3) Where any sample is taken under clause (a) of sub-section (1) or sub-section (2), its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken.
(4) If any article intended for food appears to any food inspector to be adulterated or misbranded, he may seize and carry away or keep in the safe custody of the vendor such article in order that it may be dealt with as hereinafter provided: and he shall, in either case, take a sample of such article and submit the same for analysis to a public analyst:
Provided that where the food inspector keeps such article in the safe custody of the vendor he may require the vendor to execute a bond for a sum of money equal to the value of such article with one or more sureties as the food inspector deems fit and the vendor shall execute the bond accordingly.
(4A) Where any article of food seized under sub-section (4) is of a perishable nature and the Local (Health) Authority is satisfied that such article of food is so deteriorated that it is unfit for human consumption, the said Authority may, after giving notice in writing to the vendor, cause the same to be destroyed.
(5) The power conferred by this section includes power to break open any package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale:
Provided that the power to break open the package or door shall be exercised only after the owner or any other person in charge of the package or, as the case may be, in occupation of the premises, if he is present therein, refuses to open the package or door on being called upon to do so, and in either case after recording the reasons for doing so:
Provided further that the food inspector shall, in exercising the powers of entry upon, and inspection of any place under this section, follow, as far as may be, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to the search or inspection of a place by a police officer executing a search warrant issued under that Code.
(6) Any adulterant found in the possession of a manufacturer or distributor of, or dealer in, any article of food or in any of the premises occupied by him as such and for the possession of which he is unable to account to the satisfaction of the food inspector, and any books of account or other documents found in his possession or control and which would be useful for, or relevant to, any investigation or proceeding under this Act, may be seized by the food inspector and a sample of such adulterant submitted for analysis to a public analyst:
Provided that no such books of account or other documents shall be seized by the food inspector except with the previous approval of the authority to which he is officially subordinate.
(7) Where the food inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4) or sub-section (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures.
(7A) Where any books of account or other documents are seized under sub-section (6), the food inspector shall within a period not exceeding thirty days from the date of seizure, return the same to the person from whom they were seized after copies thereof or extracts therefrom as certified by that person in such manner as may be prescribed have been taken:
Provided that where such person refuses to so certify, and a prosecution has been instituted against him under this Act, such books of account or other documents shall be returned to him only after copies thereof or extracts therefrom as certified by the court have been taken.
(7B) When any adulterant is seized under sub-section (6), the burden of proving that such adulterant is not meant for purposes of adulteration shall be on the person from whose possession such adulterant was seized.
(8) Any food inspector may exercise the powers of a police officer under section 42 of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of ascertaining the true name and residence of the person from whom a sample is taken or an article of food is seized.
(9) Any food inspector exercising powers under this Act or under the rules made thereunder who—
(a) vexatiously and without any reasonable grounds of suspicion seizes any article of food or adulterant; or
(b) commits any other act to the injury of any person without having reason to believe that such act is necessary for the execution of his duty; shall be guilty of an offence under this Act and shall be punishable for such offence with fine which shall not be less than five hundred rupees but which may extend to one thousand rupees.
(i) It is not the law that the evidence of a Food Inspector must necessarily need corroboration from independent witnesses. The evidence of the Food Inspector is not inherently suspected, nor should it be rejected on that ground. He discharges the public function in purchasing an article of food for analysis and if the article of food so purchased in the manner prescribed under the Act is found adulterated, he is required to take action as per the law. He discharges the public duty. His evidence is to be tested on its own merits and if found acceptable, the court would be entitled to accept and rely on to prove prosecution case; State of U.P. v. Hanif, AIR 1992 SC 1121.
(ii) Where sample was not sent by Food Inspector or by the complainant without following the procedure as laid down in the Act, cognizance is bad and is in contravention of the law; Yamuna Sah v. State of Bihar, 1990 (2) FAC 16.
(iii) The Food Inspector shall call one or more persons present at the time of taking of a sample; State of Orissa v. K. Appa Rao Subudhi, 1990 (2) FAC 189; State of Assam v. Sumermal Jain, 1990 (2) FAC 223.
(iv) The Food Inspector is a public servant. There is no cogent reason to disbelieve his evidence; Ram Gopal Aggarwal v. S.M. Mitra, 1989 (2) FAC 339.
(v) Where outsiders who were present at the spot refused to be cited as witness and went away, then the Food Inspector did not fault in calling independent witnesses; Laxmidhar Saha v. State of Orissa, 1989 (1) FAC 364.