SWAMI ACHYUTANAND TIRTH & ORS. Vs. UNION OF INDIA & ORS.
Supreme Court of India (Full Bench (FB)- Three Judge)
Writ Petition (Civil), 159 of 2012, Judgment Date: Aug 05, 2016
The present writ petition is filed in public interest by the
petitioners highlighting the menace of growing sales of adulterated and
synthetic milk in different parts of the country.
Considering the seriousness of the matter and in the light of various
orders passed by this Court, the Writ Petition is disposed of with the
following directions and observations:-
i. Union of India and the State Governments shall take appropriate steps
to implement Food Safety and Standards Act, 2006 in a more effective
manner.
ii. States shall take appropriate steps to inform owners of dairy, dairy
operators and retailers working in the State that if chemical adulterants
like pesticides, caustic soda and other chemicals are found in the milk,
then stringent action will be taken on the State Dairy Operators or
retailers or all the persons involved in the same.
iii. State Food Safety Authority should also identify high risk areas
(where there is greater presence of petty food manufacturer/business
operator etc.) and times (near festivals etc.) when there is risk of
ingesting adulterated milk or milk products due to environmental and other
factors and greater number of food samples should be taken from those
areas.
iv. State Food Safety Authorities should also ensure that there is
adequate lab testing infrastructure and ensure that all labs have/obtain
NABL accreditation to facilitate precise testing. State Government to
ensure that State food testing laboratories/district food laboratories are
well-equipped with the technical persons and testing facilities.
v. Special measures should be undertaken by the State Food Safety
Authorities (SFSA) and District Authorities for sampling of milk and milk
products, including spot testing through Mobile Food Testing Vans equipped
with primary testing kits for conducting qualitative test of adulteration
in food.
vi. Since the snap short survey conducted in 2011 revealed adulteration
of milk by hazardous substances including chemicals, such snap short
surveys to be conducted periodically both in the State as well as at the
national level by FSSAI.
vii. For curbing milk adulteration, an appropriate State level Committee
headed by the Chief Secretary or the Secretary of Dairy Department and
District level Committee headed by the concerned District Collector shall
be constituted as is done in the State of Maharashtra to take the review of
the work done to curb the milk adulteration in the district and in the
State by the authorities.
viii. To prevent adulteration of milk, the concerned State Department shall
set up a website thereby specifying the functioning and responsibilities of
food safety authorities and also creating awareness about complaint
mechanisms. In the website, the contact details of the Joint Commissioners
including the Food Safety Commissioners shall be made available for
registering the complaints on the said website. All States should also
have and maintain toll free telephonic and online complaint mechanism.
ix. In order to increase consumer awareness about ill effects of milk
adulteration as stipulated in Section 18(1)(f) the States/Food
Authority/Commissioner of Food Safety shall inform the general public of
the nature of risk to health and create awareness of Food Safety and
Standards. They should also educate school children by conducting
workshops and teaching them easy methods for detection of common
adulterants in food, keeping in mind indigenous technological innovations
(such as milk adulteration detection strips etc.)
x. Union of India/State Governments to evolve a complaint mechanism for
checking corruption and other unethical practices of the Food Authorities
and their officers.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 159 OF 2012
SWAMI ACHYUTANAND TIRTH & ORS. ….Petitioners
Versus
UNION OF INDIA & ORS. …Respondents
WITH
SPECIAL LEAVE PETITION (CRL.) NO. 1379 OF 2011 AND CRIMINAL APPEAL NOS.472,
476-478 AND 479 OF 2012
J U D G M E N T
R. BANUMATHI, J.
The present writ petition is filed in public interest by the
petitioners highlighting the menace of growing sales of adulterated and
synthetic milk in different parts of the country. The petitioners are
residents of the State of Uttarakhand, Uttar Pradesh, Rajasthan, Haryana
and NCT of Delhi and have accordingly shown concern towards the sale of
adulterated milk in their States. However, the issue of food safety being
that of national importance, Union of India has also been made a party-
respondent. The petitioners allege that the concerned State Governments and
Union of India have failed to take effective measures for combating the
adulteration of milk with hazardous substance like urea, detergent, refined
oil, caustic soda, etc. which adversely affects the consumers’ health and
seek appropriate direction.
2. The petitioners have relied on a report dated 02.01.2011 titled
“Executive Summary on National Survey on Milk Adulteration, 2011” released
by Foods Safety and Standards Authority of India (FSSAI) which concluded
that on a national level, 68.4 per cent of milk being sold is adulterated
and it is alleged that the worst performers in the survey were Bihar,
Chhattisgarh, Odisha, West Bengal, Mizoram, Jharkhand and Daman and Diu,
where adulteration in milk was found up to 100%. In the States of
Uttarakhand and Uttar Pradesh 88% of milk samples were found adulterated.
According to the petitioners, milk is the only source of nourishment for
infants and a major part of the diet for growing children in tender age and
if no effective measure is taken to ensure the purity of milk, health of
the children will be adversely affected. The petitioners pleaded inaction
and apathy on the part of the respondents to take appropriate measure to
rule out sale and circulation of synthetic milk and milk products across
the country which according to the petitioners has resulted in violation of
fundamental rights of the petitioners and public at large guaranteed under
Article 21 of the Constitution of India. The petitioners, therefore, seek
for a writ of mandamus directing Union of India and the concerned State
Governments to take immediate effective and serious steps to rule out the
sale and circulation of synthetic/adulterated milk and the milk products
like ghee, mawa, cheese, etc.
3. In compliance of various orders passed by this Court, all the States
have filed affidavits stating that ever since Food Safety and Standards
Act, 2006 [for short “the FSS Act”] came into force with effect from
5.8.2011, the provisions of the Act are being sincerely implemented by the
States and also indicating action taken by the States, number of
prosecutions launched and status of those cases. States have further
stated that after the National Survey on Milk Adulteration by FSSAI in
2011, comprehensive action is being taken by the State Governments to check
whether milk is being adulterated with chemicals and stringent action is
being taken in accordance with FSS Act and penal laws.
4. We have heard the learned counsel appearing for the petitioners,
Union of India and counsel appearing for various States.
5. On behalf of Union of India, it was submitted that a fair mechanism
for dealing with food safety and standards and for checking adulteration is
in place. As the Parliament has enacted Food Safety and Standards Act, 2006
and Regulations, 2011 which are effective in taking care of the food safety
and standards, it becomes, therefore, important to firstly refer to the
legislative efforts made by the Union of India. The Parliament has enacted
Food Safety and Standards Act, 2006 which is exhaustive on laws relating to
food and repeals two other earlier laws relating to prevention of food
adulteration. Preamble of the FSS Act, 2006 reads as under:-
“An Act to consolidate the laws relating to food and to establish the Food
Safety and Standards Authority of India for laying down science based
standards for articles of food and to regulate their manufacture, storage,
distribution, sale and import, to ensure availability of safe and wholesome
food for human consumption and for matters connected therewith or
incidental thereto.”
6. Some of the objectives of the Food Safety and Standards Act, 2006 are
as follows:
i. To consolidate the laws relating to Food.
ii. To establish Food Safety and Standards Authority of India for laying
down science based standards for articles of Food.
iii. To regulate their manufacture, storage, distribution, sale and
import.
iv. To ensure availability of safe and wholesome food for human
consumption.
The Act, apart from making more stringent provisions (e.g. prescribing
higher penalties etc.) to curb food adulteration, also ushers in new
concepts such as putting in place Food Safety Management Systems and Food
Safety Audit to realize its ultimate goal of ensuring availability of safe
and wholesome Food for human consumption. In order to ensure food safety,
effective food safety systems implementation and to ensure that food
producers and suppliers operate responsibly and supply safe food to
consumers, the Act further stipulates:-
Licensing for manufacture of food products, which is presently granted by
the central agencies under various Acts and orders, would stand
decentralized to the commissioner of Food Safety and his officer.
ii. Single reference point for all matters relating to Food Safety and
Standards, regulations and enforcement.
iii. Shift from mere regulatory regime to self compliance through Food
Safety management systems.
iv. Responsibility on Food Business Operators to ensure that Food
processed, manufactured, imported or distributed is in compliance with the
domestic Food laws.
7. Exercising power under the Act, Central Government constituted the
Food Safety and Standards Authority of India (FSSAI). Duties and functions
of the Food Safety and Standards Authority have been elaborately dealt with
in Section 16 of the FSS Act, which states that it shall be the duty of the
Food Authority to regulate and monitor the manufacture, processing,
distribution, sale and import of food, and shall specify, by regulations,
the standards and guidelines in relation to articles of food, mechanisms
and guidelines for accreditation of certification bodies engaged in
certification of food safety management systems for food businesses and
notify the accredited laboratories, etc. In exercise of powers conferred by
Section 91 of the FSS Act, the Central Government framed the Food Safety
and Standard Rules, 2011 which came into force on 05.08.2011. In exercise
of powers conferred by Clause (o) of Sub-section (2) of Section 92 read
with Section 31 of FSS Act, Central Government framed regulations viz. Food
Safety and Standards (Licencing and Registration of Food Businesses)
Regulations 2011. Under the said Regulation by virtue of Regulation 2.1,
all food business and food operators are required to obtain licence and get
themselves registered as per the provisions of FSS Regulation, 2011. The
definition of the Food Operator, Food business and food are laid down under
Section 3(o), 3(n) and 3(j) respectively of FSS Act, 2006. Likewise in
exercise of powers conferred by Clause (k) of Sub-section (2) of Section 92
read with Section 23 of FSS Act, Regulations insofar as they relate to Food
Safety and Standards (Packaging and Labeling) Regulations, 2011 were made.
8. Chapter III of the Food Safety and Standards Act, 2006 deals with
the general principles of food safety. The Central Government, the State
Governments, the Food Authority and other agencies while implementing the
provisions of the Act shall be guided by the principles indicated in
Chapter III of the Act, which read as under:-
“CHAPTER III
GENERAL PRINCIPLES OF FOOD SAFETY
18. General principles to be followed in administration of Act.—The Central
Government, the State Governments, the Food Authority and other agencies,
as the case may be, while implementing the provisions of this Act shall be
guided by the following principles namely:—
(1) (a) endeavour to achieve an appropriate level of protection of human
life and health and the protection of consumers’ interests, including fair
practices in all kinds of food trade with reference to food safety
standards and practices;
(b) carry out risk management which shall include taking into account the
results of risk assessment, and other factors which in the opinion of the
Food Authority are relevant to the matter under consideration and where the
conditions are relevant, in order to achieve the general objectives of
regulations;
(c) where in any specific circumstances, on the basis of assessment of
available information, the possibility of harmful effects on health is
identified but scientific uncertainty persists, provisional risk management
measures necessary to ensure appropriate level of health protection may be
adopted, pending further scientific information for a more comprehensive
risk assessment;
(d) the measures adopted on the basis of clause (c) shall be proportionate
and no more restrictive of trade than is required to achieve appropriate
level of health protection, regard being had to technical and economic
feasibility and other factors regarded as reasonable and proper in the
matter under consideration;
(e) the measures adopted shall be reviewed within a reasonable period of
time, depending on the nature of the risk to life or health being
identified and the type of scientific information needed to clarify the
scientific uncertainty and to conduct a more comprehensive risk assessment;
(f) in cases where there are reasonable grounds to suspect that a food may
present a risk for human health, then, depending on the nature, seriousness
and extent of that risk, the Food Authority and the Commissioner of Food
Safety shall take appropriate steps to inform the general public of the
nature of the risk to health, identifying to the fullest extent possible
the food or type of food, the risk that it may present, and the measures
which are taken or about to be taken to prevent, reduce or eliminate that
risk; and
(g) where any food which fails to comply with food safety requirements is
part of a batch, lot or consignment of food of the same class or
description, it shall be presumed until the contrary is proved, that all of
the food in that batch, lot or consignment fails to comply with those
requirements.
9. The general principles referred to above are to be followed in the
administration of the Act, by the Central Government, the Food Authority,
the State Governments and other agencies, while implementing the
Regulations and specifying food safety standards or while enforcing or
implementing the provisions of the FSS Act. The Food Authority, while
discharging its functions, shall take into account the prevailing practices
and conditions in the country, including agricultural practices and
handling, storage and transport conditions, including international
standards and practices. The Food Authority shall be guided by the general
principles of food safety, such as, risk analysis, risk assessment, risk
management, risk communication, transparent public consultation, protection
of consumers’ interest, etc.
10. As per Food Safety and Standards (Licensing and Registration of Food
Business) Regulations, 2011, the Dairy establishment in which dairy based
food is being handled, processed, manufactured, stored and distributed and
ultimately sold by Food Business Operator should conform to the sanitary
and hygienic requirements, food safety measures and other standards as laid
down in Part-III of FSS Regulations, 2011. As per Part III of the said FSS
Regulations, 2011, specific hygienic and basic sanitary measures are
required to be followed by such Food Business Operators. It is compulsory
for the milk business operator to submit half yearly return for milk and
milk products in form D-2 as provided in Regulation 2.1.13 of Food Safety
and Standards (Licensing and Registration of Food Business) Regulations,
2011.
11. Section 19 of the Act stipulates that no article of food shall
contain any food additive or processing aid unless it is in accordance with
the provisions of the Act and regulations made thereunder. In exercise of
its powers conferred under clause (e) of sub-section (2) of Section 92 read
with Section 16 of the FSS Act Food Authority made the Food Safety and
Standards (Food Products, Standards and Food Additives) Regulations, 2011.
The same is intended to regulate and monitor, manufacture, processing,
distribution, sale and import of food so as to ensure safe and wholesome
food. Regulation 1.2 defines various categories of milk products as under:-
1.2.1. “BOILED MILK” means milk which has been brought to boil;
1.2.3. DOUBLE TONED MILK means the product prepared by admixture of
cow or buffalo milk or both with fresh skimmed milk, or by admixture of cow
or buffalo milk or both that has been standardized to fat and solids-not-
fat percentage given in the table below in 2.1.1:1 by adjustment of milk
solids. It shall be pasteurized and shall show a negative Phosphatase
Test. When fat or dry non-fat milk solids are used, it shall be ensured
that the product remains homogeneous and no deposition of solids takes
place on standing;
1.2.5. Flavoured Milk, by whatever name called, may contain nuts
(whole, fragmented or ground) chocolate, coffee or any other edible flavor,
edible food colours and cane sugar. Flavoured milk shall be pasteurized,
sterilized or boiled. The type of milk shall be mentioned on the label;
1.2.6. Full Cream Milk means milk or a combination of buffalo or cow
milk or a product prepared by combination of both that has been
standardized to fat and solids-not-fat percentage, given in the table below
in 2.1.1:1, by adjustment/addition of milk solids, Full Cream Milk shall be
pasteurized. It shall show a negative phosphatase test. It shall be
packed in clean, sound and sanitary containers properly sealed so as to
prevent contamination;
1.2.10. MILK is the normal mammary secretion derived from complete milking
of healthy milch animal without either addition thereto or extraction
therefrom unless otherwise provided in these regulations. It shall be free
from colostrum. Milk of different classes and of different designations
shall conform to the standards laid down in the Table below in 2.1.1:1
Total area content in the milk shall not be more than 700 ppm;
1.2.11. MIXED MILK means a combination of milk of cow, buffalo, sheep, goat
or any other milch animal and may be a combination of any of these milk
which has been made and conforms to the standards given in the table below
in 2.1.1:1;
1.2.12. MILK PRODUCTS means the products obtained from milk such as cream,
malai, curd, skimmed milk curd, chhenna, skimmed milk chhenna, cheese,
processed cheese, ice-cream, milk ices, condensed milk-sweetened, and
unsweetened, condensed skimmed milk-sweetened and unsweetened, milk powder,
skimmed milk powder, partly skimmed milk powder, khoa, infant milk food,
table butter and desi butter.
Milk products shall not contain any substance not found in milk unless
specified in the standards;
1.2.16. RECOMBINED MILK means the homogenized product prepared from milk
fat, non-fat-milk solids and water. Recombined milk shall be pasteurized
and shall show a negative Phosphatase test;
1.2.19. SKIMMED MILK means the product prepared from milk from which almost
all the milk fat has been removed mechanically;
1.2.21. STANDARDISED MILK means cow milk or buffalo milk or sheep milk or
goat milk or a combination of any of these milk that has been standardized
to fat and solids-not-fat percentage given in the table below in 2.1.1:1 by
the adjustment of milk solids. Standardised milk shall be pasteurized and
shall show a negative Phosphatase Test;
1.2.24. TONED MILK means the product prepared by admixture of cow or
buffalo milk or both with fresh skimmed milk; or by admixture of cow or
buffalo milk or both that has been standardized to fat and solids-not-fat
percentage given in the table below in 2.1.1:1 by adjustment of milk
solids. It shall be pasteurized and shall show a negative Phosphatase
Test. When fat or dry non-fat-milk solids are used, it shall be ensured
that the product remains homogenous and no deposition of solids takes place
on standing.
Chapter 2 of the said Regulations deals with Food Product Standards. As
per 2.1.1, the standards of different classes and designation of milk shall
conform to both the parameters for milk fat and milk solids-not-fat for
various States as indicated in the table thereon. As noticed earlier, Part
III of the Food Safety and Standards (Licensing and Registration of Food
Business) Regulations, 2011 prescribes specific hygienic and basic sanitary
measures to be followed by the Food Business Operators.
12. Sections 50 to 65 of FSS Act deal with punishment for contravention
of the provisions. Section 59 of the Act provides for punishment for
unsafe food. As per Section 89 of the Food Safety and Standards Act, 2006,
provisions of the Act shall have overriding effect over all other food
laws. Section 97 (2) repeals any other law for the time being in force in
any State at the time of commencement of the Act. Taking note of the
seriousness of the offence, State of Uttar Pradesh has amended Section 272
of the Indian Penal Code by enhancing the sentence to imprisonment for life
and also fine. Similar amendment has been made by the States of West
Bengal and Orissa. State of Madhya Pradesh in its counter affidavit has
stated that it has also decided to amend Section 272 of IPC by enhancing
the sentence to imprisonment for life with or without fine and
consequential amendments to Schedule II to the Criminal Procedure Code.
Considering the seriousness of the offence, the Supreme Court vide its
orders dated 05.12.2013 and 30.01.2014 has directed similar amendments be
made in other States as well. Vide its order dated 10.12.2014, this Court
directed Union of India to come up with necessary amendments in Food Safety
and Standards Act, 2006 and also in the Indian Penal Code to make penal
provisions at par with State Amendments.
13. In its counter affidavit filed on 19.02.2014 FSSAI has stated that
the High Court of Judicature at Allahabad in Writ Petition No.8254 of 2010
vide judgment dated 08.09.2010 held that invoking of Sections 272 and 273
IPC in a matter relating to adulteration of food is not justified and that
the authorities can take action only under Food Safety and Standards Act,
2006. In the said case by an order dated 11.05.2010 Government of Uttar
Pradesh had directed all the Divisional Commissioners, District
Magistrates, Deputy Inspector General of Police, Senior Superintendent of
Police and Superintendent of Police to lodge FIR under Section 272/273 IPC
in case of adulteration of any article or drink. High Court of Allahabad,
vide its judgment dated 08.09.2010 has quashed the said Government order
against which State of Uttar Pradesh has preferred appeals before this
Court in Criminal Appeals No.476-478 of 2012 which, as indicated hereunder,
are ordered to be delinked. As the question of invoking Sections 272/273
IPC for violation under Food Safety and Standards Act, 2006 is sub judice
in the said criminal appeals, we are not inclined to go into the said
question. Suffice to note that Food Safety and Standards Act, 2006
alongwith the rules and regulations framed thereunder constitutes a
vigorous regulatory regime which takes care of the various situations of
contraventions. Apprehensions raised by the writ petitioners could be taken
care of by the authorities under the provisions of the FSS Act as well as
the rules and regulations framed thereunder.
14. In 2011, Food Safety and Standards Authority of India (FSSAI)
conducted National Survey on Milk Adulteration (snap shot survey) to
ascertain the quality of milk and identify different types of adulteration
in liquid milk throughout the country. The survey was carried out by the
Regional Offices of the FSSAI located at Chennai (Southern Region), Mumbai
(Western Region), Delhi (Northern Region), Guwahati (North Eastern Region)
and Kolkata (Eastern Region) with the following objectives:-
1. To identify the common adulterants in milk in rural and urban areas
of different states.
2. To find out the non conforming samples in loose and packed milk.
The samples were collected randomly and analysed from 33 States. The
samples were sent to various Govt. laboratories namely, Department of Food
and Drug testing, Government of Puducherry, Central Food Laboratory, Pune,
Food Research and Standardization Laboratory, Ghaziabad, State Public
Health Labaoratory, Guwahati and Central Food Laboratory, Kolkata for
analysis. The following parameters were analysed such as Fat (%), SNF (%),
Neutralizers, Acidity, Hydrogen Peroxide, Sugar, Starch, Glucose, Urea,
Salt, Detergent, Skimmed milk powder, and Vegetable fat to ascertain the
presence of adulterant.
15. The Summary of National Survey on Milk Adulteration on “FOOD SAFETY
AND STANDARDS AUTHORITY OF INDIA” (FSSAI) National Survey on
Adulteration of Milk-An Overview. Dated: 02.01.2012, reads as under:-
“……
3. The total conforming samples to the FSSA standards were 565 (31.5%).
The total non-conforming samples were found to be 1226 (68.4%).
4. The non-conformity of samples in rural areas were 381 (31%) out of
which 64 (16.7%) were packet samples and 317 (83.2%) were loose samples and
in urban areas the total non confirming samples were 845 (68.9%) out of
which 282 (33.4%) were packed and 563 (66.6%) were loose samples.
5. The deviations were found highest on account of Fat and SNF content
in 574 samples (46.8%) of the total non-conformity, which included 147
samples with detergent and two samples with neutralizers respectively.
Detergent was also found in 103 samples (8.4%). Perhaps the reason may be
dilution of milk with water. The second highest parameter of non
conformity was the Skim Milk Powder (SMP) in 548 samples (44.69%) which
includes presence of glucose in 477 samples. Glucose would have been added
to milk probably to enhance SNF. The presence of Skim Milk Powder
indicates the reconstitution of milk powder.
6. The non-conforming samples in the descending order of percentage with
respect to total samples collected in different states were as follows:
Bihar (100%), Chhattisgarh (100%), Daman and Diu (100%), Jharkhand (100%),
Orissa (100%), West Bengal (100%), Mizoram (100%), Manipur (96%), Meghalaya
(96%), Tripura (92%), Gujarat (89%), Sikkim (89%), Uttrakhand (88%), Uttar
Pradesh (88%), Nagaland (86%), Jammu and Kashmir (83%), Punjab (81%),
Rajasthan (76%) Delhi (70%), Haryana (70%), Arunachal Pradesh (68%),
Maharashtra (65%), Himachal Pradesh 59%), Dadra and Nagar Haveli (58%),
Assam (55%), Chandigarh (48%), Madhya Pradesh (48%), Kerala (28%),
Karnataka (22%), Tamil Nadu (12%) and Andhra Pradesh (6.7%).
All the samples in Goa and Puducherry conformed to the standards.”
16. News of “National Survey on adulteration of Milk” was reported in
various newspapers including ‘The Hindu’, ‘Business Line’, ‘Times of
India’, ‘Indian Express’ and other newspapers, the clippings of which are
filed in IA No.2 of 2012, an application for impleadment filed by one
Manisha Shah. The result of the above survey confirms that the samples of
milk were diluted with water or found to have been adulterated with
chemicals. Nutritional value of milk is compromised by mixing water and
other harmful agents. Adulteration of milk with water is used to increase
the volume of milk and brings down the nutritional value, and contaminated
water in adulterated milk can cause gastroenteritis, stomach ailments, etc.
Adulteration of milk with chemicals like caustic soda and detergents etc.
is very serious. Prolonged consumption of milk adulterated with chemicals
may affect vital body organs and may pose health risk to the infants,
children and also adults.
17. To safeguard infants/children and general public from dangers of
adulteration of milk, FSSAI mandates an upper limit for certain micro
organisms in pasteurized milk, these norms are necessary because it is
stated that even milk from healthy cows and buffalos is vulnerable to
bacterial contamination once it is stored for sometime at normal
temperature. It is stated that besides minor skin infections, some
bacteria can cause life endangering diseases such as pneumonia and
diarrhea.
18. In the interim order dated 05.12.2013, this Court has expressed
concern on adulteration of milk and milk products by unabated use of
synthetic and harmful materials sold in the market. The consumption of
adulterated milk and milk products is hazardous to human health and the
state of affairs is alarming. Taking note of the seriousness of the matter
vide order dated 30.01.2014, this Court directed Union of India and the
States to file affidavits indicating the steps taken for curbing the
adulteration of milk and indicating the number of cases identified where
milk was adulterated with hazardous chemicals and details of prosecution
launched and the result thereof. In compliance of those orders, all the
States have filed their responses indicating the inspection done, number of
prosecutions launched and status of those cases.
19. Considering the seriousness of the offence and referring to the
amendment to Section 272 Indian Penal Code made by States of Uttar Pradesh,
West Bengal and Odisha, wherein the punishment for adulteration of food and
products is enhanced to imprisonment for life and also fine, by order dated
05.12.2013, this Court observed that “similar amendments are to be made in
other states as well.” The same direction was reiterated by this Court vide
order dated 30.01.2014 and this Court also directed Union of India to
consider bringing in suitable amendments to FSS Act. On 13.03.2014, counsel
appearing for the Union of India produced a letter dated 12.03.2014 of the
Ministry of Health and Family Welfare wherein it has been stated that under
the chairmanship of the Chairman of FSSAI, it has been decided to seek
approval of the Government for initiating the process of amendment of the
Food Safety and Standards Act 2006 in the light of the observations made by
this Court. Vide order dated 11.11.2014, this Court observed that Union of
India and State Governments must come out with suitable amendments in the
Act or with a new legislation to stop adulteration and production of
synthetic milk which is consumed by the infants/children and by the public
at large. When the matter came up for hearing on 10.12.2014, Union of
India submitted that the bill seeking to amend FSS Act by inserting a new
section ‘Section 7A’ was withdrawn and the Parliamentary Standing Committee
on Health and Family Welfare recommended that the Government of India may
re-look into all the aspects of the matter and come up with a comprehensive
Bill at the earliest. In the light of the said statement, vide order dated
10.12.2014, this Court observed as under:-
“We reiterate that the respondent-Union of India shall take up the matter
seriously and come up with all possible amendments in the Food Safety and
Standards Act, 2006. …
It goes without saying that while making necessary amendments in the
Food Safety and Standards Act, 2006, the respondent-Union of India shall
also make penal provisions at par with the provisions contained in the
Indian Penal Code and the States Amendments made therein.”
20. Since in India traditionally infants/children are fed milk,
adulteration of milk and its products is a concern and stringent measures
need to be taken to combat it. The consumption of adulterated milk and
adulterated milk products is hazardous to human health. As directed by
this Court by order dated 10.12.2014, it will be in order that the Union of
India come up with suitable amendments in the Food Safety and Standards
Act, 2006 and the respondent-Union of India shall also make penal
provisions at par with the provisions contained in the State amendments as
indicated above.
21. As observed by this Court in the orders dated 05.12.2013 and
10.12.2014, it will be in order, if the Union of India considers making
suitable amendments in the penal provisions at par with the provisions
contained in the State amendments to the Indian Penal Code. It is also
desirable that Union of India revisits the Food Safety and Standards Act,
2006 to revise the punishment for adulteration making it more deterrent in
cases where the adulterant can have an adverse impact on health.
22. Considering the seriousness of the matter and in the light of various
orders passed by this Court, the Writ Petition is disposed of with the
following directions and observations:-
i. Union of India and the State Governments shall take appropriate steps
to implement Food Safety and Standards Act, 2006 in a more effective
manner.
ii. States shall take appropriate steps to inform owners of dairy, dairy
operators and retailers working in the State that if chemical adulterants
like pesticides, caustic soda and other chemicals are found in the milk,
then stringent action will be taken on the State Dairy Operators or
retailers or all the persons involved in the same.
iii. State Food Safety Authority should also identify high risk areas
(where there is greater presence of petty food manufacturer/business
operator etc.) and times (near festivals etc.) when there is risk of
ingesting adulterated milk or milk products due to environmental and other
factors and greater number of food samples should be taken from those
areas.
iv. State Food Safety Authorities should also ensure that there is
adequate lab testing infrastructure and ensure that all labs have/obtain
NABL accreditation to facilitate precise testing. State Government to
ensure that State food testing laboratories/district food laboratories are
well-equipped with the technical persons and testing facilities.
v. Special measures should be undertaken by the State Food Safety
Authorities (SFSA) and District Authorities for sampling of milk and milk
products, including spot testing through Mobile Food Testing Vans equipped
with primary testing kits for conducting qualitative test of adulteration
in food.
vi. Since the snap short survey conducted in 2011 revealed adulteration
of milk by hazardous substances including chemicals, such snap short
surveys to be conducted periodically both in the State as well as at the
national level by FSSAI.
vii. For curbing milk adulteration, an appropriate State level Committee
headed by the Chief Secretary or the Secretary of Dairy Department and
District level Committee headed by the concerned District Collector shall
be constituted as is done in the State of Maharashtra to take the review of
the work done to curb the milk adulteration in the district and in the
State by the authorities.
viii. To prevent adulteration of milk, the concerned State Department shall
set up a website thereby specifying the functioning and responsibilities of
food safety authorities and also creating awareness about complaint
mechanisms. In the website, the contact details of the Joint Commissioners
including the Food Safety Commissioners shall be made available for
registering the complaints on the said website. All States should also
have and maintain toll free telephonic and online complaint mechanism.
ix. In order to increase consumer awareness about ill effects of milk
adulteration as stipulated in Section 18(1)(f) the States/Food
Authority/Commissioner of Food Safety shall inform the general public of
the nature of risk to health and create awareness of Food Safety and
Standards. They should also educate school children by conducting
workshops and teaching them easy methods for detection of common
adulterants in food, keeping in mind indigenous technological innovations
(such as milk adulteration detection strips etc.)
x. Union of India/State Governments to evolve a complaint mechanism for
checking corruption and other unethical practices of the Food Authorities
and their officers.
23. The Special Leave Petition (Crl.) No. 1379/2011, Criminal
Appeals No.472/2012, 476-478/2012 and 479/2012 are ordered to be de-tagged.
…....……………………..CJI.
(T.S. THAKUR)
…....………………………..J.
(R. BANUMATHI)
…....………………………..J.
(UDAY UMESH LALIT)
New Delhi;
August 5, 2016