The Prevention of Food Adulteration Act, 1954 - Procedure to be followed by food inspectors

11. Procedure to be followed by food inspectors —

     (1) When a food inspector takes a sample of food for analysis, he shall—

 (a) 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 14A;

 (b) except in special cases provided by rules under this Act, divide the sample then and there into threes 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 of thumb impression of such person;

 (c) (i) send one of the parts for analysis to the public analyst under intimation to the Local (Health) Authority; and

     (ii) 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.

 (2) 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.

 (3) When a sample of any article of food or adulterant is taken under sub-section (1) or sub-section (2) of section 10, 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.

 (4) 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:

      Provided 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.

 (5) If it appears to the magistrate on taking such evidence as he may deem necessary—

     (a) that the article of food produced before him under sub-section (4) is adulterated or misbranded, he may order it—

        (i) to be forfeited to the Central Government, the State Government or the local authority, as the case may be; or

        (ii) 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

       (iii) to be so disposed of as to prevent its being again exposed for sale or used for food under its deceptive name; or

       (iv) 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 be specified in the order;

   (b) 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.

(6) If it appears to the magistrate that any such—

     (a) article of food is not adulterated; or

     (b) 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.

COMMENTS

 (i) The sub-section (3) of section 11 is directory and not mandatory in nature; Binda Prasad v. State, 1995 (1) FAC 43.

 (ii) The requirement of section 11 of the Act is that the Food Inspector shall take the sample and divide it there and then in three parts and mark and seal each part in such a manner as its natural way permits and take signature or thumb impression of the person from whom the sample has been taken; State of Rajasthan v. Naresh Chand, 1989 (1) FAC 338.

 (iii) The responsibility of the Food Inspector is only to send the sample not later than the immediately succeeding working day to the Public Analyst. The method in which he has to send it is not specified in section 11(3) of the Act; Food Inspector v. Noor Mohammed, 1989 (1)FAC 371.

12. Purchaser may have food analysed —

     Nothing contained in this Act shall be held to prevent a purchaser of any article of food other than a food inspector or a recognised consumer association, whether the purchaser is a member of that association or not from having such article analysed by the public analyst on payment of such fees as may be prescribed and from receiving from the public analyst a report of his analysis:

      Provided that such purchaser or recognised consumer association shall inform the vendor at the time of purchase of his or its intention to have such article so analysed:

      Provided further that the provisions of sub-section (1), sub-section (2) and sub-section (3) of section 11 shall, as far as may be, apply to a purchaser of article of food or recognised consumer association, who or which intends to have such articles so analysed, as they apply to a food inspector who takes a sample of food for analysis:

     Provided also that if the report of the public analyst shows that the article of food is adulterated, the purchaser or recognised consumer association shall be entitled to get refund of the fees paid by him or it under this section.

Explanation — For the purpose of this section and section 20, "recognised consumer association" means a voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or under any other law for the time being in force.

13. Report of public analyst —

 (1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.

 (2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

  (2A) When an application is made to the court under sub-section (2), the court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the court within a period of five days from the date of receipt of such requisition.

  (2B) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2A), the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.

  (2C) Where two parts of the sample have been sent to the court and only one part of the sample has been sent by the court to the Director of the Central Food Laboratory under sub-section (2B), the court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the court:

     Provided that where the part of the sample sent by the court to the Director of the Central Food Laboratory is lost or damaged, the court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the court and on receipt thereof, the court shall proceed in the manner provided in sub-section (2B).

   (2D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the court shall not continue with the proceedings pending before it in relation to the prosecution.

  (2E) If, after considering the report, if any, of the food inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of sub-sections (2) to (2D) shall, so far as may be, apply.

 (3) The certificate issued by the Director of the Central Food Laboratory under sub-section (2B) shall supersede the report given by the public analyst under sub-section (1).

 (4) Where a certificate obtained from the Director of the Central Food Laboratory under sub-section (2B) is produced in any proceeding under this Act, or under sections 272 to 276 of the Indian Penal Code (45 of 1860), it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis.

(5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code (45 of 1860):

       Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory [not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub-section (1A) of section 16 shall be final and conclusive evidence of the facts stated therein.

Explanation — In this section, and in clause (f) of sub-section (l) of section 16, "Director of the Central Food Laboratory" shall include the officer for the time being in charge of any Food Laboratory (by whatever designation he is known) recognised by the Central Government for the purposes of this section.

COMMENTS 

 (i) The provision of sub-section (2) of section 13 of the Act is mandatory in nature; Bijaya Kumar Ram v. State, 1989 (1) FAC 394.

(ii) Sub-section (2) of section 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis inspite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay; T.V. Usman v. Food Inspector, Tellicherry Municipality, AIR 1994 SC 1818.

(iii) An accused is entitled under sub-section (2) of section 13 of the Act to prove his innocence by getting his sample analysed from Central Food Laboratory which supersedes the report of the public analyst for ensuring a fair trial; Srinivas Pradhan v. State of Orissa, 1990 (2) FAC 101.