MISCELLANEOUS
14. Manufacturers, distributors and dealers to give warranty —
No manufacturer or distributor of, or dealer in any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor:
Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section.
Explanation — In this section, in sub-section (2) of section 19 and in section 20A, the expression "distributor" shall include a commission agent.
14A. Vendor to disclose the name, etc., of the person from whom the article of food was purchased —
Every vendor of an article of food shall, if so required, disclose to the food inspector the name, address and other particulars of the person from whom he purchased the article of food.
15. Notification of food poisoning —
The Central Government or the State Government may, by notification in the Official Gazette, require medical practitioners carrying on their profession in any local area specified in the notification to report all occurrences of food poisoning coming within their cognizance to such officer as may be specified in the notification.
16. Penalties —
(1) Subject to the provisions of sub-section (1A) if any person—
(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sales or stores, sells or distributes any article of food—
(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
(ii) other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder; or
(b) whether by himself or by any other person on his behalf, imports into India or manufactures for sales or stores, sells or distributes any adulterant which is not injurious to health; or
(c) prevents a food inspector from taking a sample as authorised by this Act; or
(d) prevents a food inspector from exercising any other power conferred on him by or under this Act; or
(e) being a manufacturer of an article of food, has in his possession, or in any of the premises occupied by him, any adulterant which is not injurious to health; or
(f) uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory or by a public analyst or any extract thereof for the purpose of advertising any article of food; or
(g) whether by himself or by any other person on his behalf, gives to the vendor a false warranty in writing in respect of any article of food sold by him, he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees:
Provided that—
(i) if the offence is under sub-clause (i) of clause (a) and is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of clause (ix) of section 2; or
(ii) if the offence is under sub-clause (ii) of clause (a), but not being an offence with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1A) of section 23 or under clause (b) of sub-section (2) of section 24. the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees:
Provided further that if the offence is under sub-clause (ii) of clause (a) and is with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1A) of section 23 or under clause (b) of sub-section (2) of section 24, the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees.
(1A) If any person whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes,—
(i) any article of food which is adulterated within the meaning of any of the sub-clauses (e) to (l) (both inclusive) of clause (ia) of section 2; or
(ii) any adulterant which is injurious to health, he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than one year but which may extend to six years and with fine which shall not be less than two thousand rupees:
Provided that if such article of food or adulterant when consumed by any person is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860), he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees.
(1AA) If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, tampers or in any other manner interferes with such article, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which shall not be less than one thousand rupees.
(1B) If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, sells or distributes such article which is found by the magistrate before whom it is produced to be adulterated within the meaning of sub-clause (h) of clause (ia) of section 2 and which, when consumed by any person, is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860), then, notwithstanding anything contained in sub-section (1AA), he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees.
(1C) If any person contravenes the provisions of section 14 or section 14A, he shall be punishable with imprisonment for a term which may extend to six months and with fine which shall not be less than five hundred rupees.
(1D) If any person convicted of an offence under this Act commits a like offence afterwards, then, without prejudice to the provisions of sub-section (2), the court, before which the second or subsequent conviction takes place, may order the cancellation of the licence, if any, granted to him under this Act and thereupon such licence shall, notwithstanding anything contained in this Act, or in the rules made thereunder, stand cancelled.
(2) If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or subsequent conviction takes place to cause the offender’s name and place of residence, the offence and the penalty imposed to be published at the offender’s expense in such newspapers or in such other manner as the court may direct. The expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine.
COMMENTS
(i) The sample of milk procured from the accused (milk vendor) was declared to be adulterated on the sole ground that there was some deficiency in milk solids, non-fats. Since the adulteration is of a minor nature, the conviction of accused is reduced from 3 months imprisonment to fine; Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226.
(ii) Where til oil was not commonly used in the area for human consumption, accused could not be found guilty and his conviction was to be set aside; Laxmidhar Sahu v. State of Orissa, 1989 (1) FAC 364 ; 1989 FAJ 463.
16A. Power of court to try cases summarily —
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under sub-section (1) of section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:
Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the magistrate to pass a sentence of imprisonment for a term not exceeding one year:
Provided further that when at the commencement of, or in the course of, a summary trial under this section it appears to the magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
COMMENTS
This section is an exception to section 262(2) of the Code of Criminal Procedure, 1973 (2 of 1974). The word ‘shall’ may be understood as ‘may’ when a case is tried in a summary way. The procedure to be followed is of a summons case; Chandak v. Food Inspector, 1990 (1) FAC 76.
17. Offences by companies —
(1) Where an offence under this Act has been committed by a company —
(a) (i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereafter in this section referred to as the person responsible), or
(ii) where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and
(b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.
(2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated.
Explanation —Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.
(3) The person nominated under sub-section (2) shall, until—
(i) further notice cancelling such nomination is received from the company by the Local (Health) Authority; or
(ii) he ceases to be a director or, as the case may be, manager of the company; or
(iii) he makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination [which request shall be complied with by the Local (Health) Authority, whichever is the earliest, continue to be the person responsible:
Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of such cesser to the Local (Health) Authority:
Provided further that where such person makes a request under clause (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made.
(4) Notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company [not being a person nominated under sub-section (2) such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation — For the purposes of this section—
(a) "Company" means any body corporate and includes a firm or other association of individuals;
(b) "director", in relation to a firm, means a partner in the firm; and
(c) "manager", in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it.
COMMENTS
(i) It is clear from the scheme of section 17 of the Act that where a company has committed an offence under the Act, the person nominated under sub-section (2) to be incharge of, and responsible to, the company for the conduct of its business shall be proceeded against unless it is shown that the offence was committed with the consent/connivance/negligence of any other Director, Manager, Secretary or Officer of the company in which case the said person can also be proceeded against and punished for commission of offence; R.Banerjee v. H.D. Dubey, AIR 1992 SC 1168.
(ii) The person incharge of the company must be prosecuted alongwith the company under this section; State of Assam v. Paban Kumar Aggarwal, 1990 (1) FAC 115.
(iii) In the absence of specific pleadings in the complaint regarding the person incharge of and responsible to the conduct of the business, the prosecution launched against him is not maintainable and the same is to be quashed; Carborandum Universal Madras v. Food Inspector Thiruvettiyur Municipality, 1989 (1) FAC 367.
. Forfeiture of property —
Where any person has been convicted under this Act for the contravention of any of the provisions of this Act or of any rule thereunder, the article of food in respect of which the contravention has been committed may be forfeited to the Government:
Provided that where the court is satisfied that the article of food is capable of being made to conform to prescribed standards for human consumption after reprocessing, the court may order the article of food to be returned to the owner, on his executing a bond with or without sureties, for being sold, subject to the other provisions of this Act, after reprocessing under the supervision of such officer as may be specified therein.
19. Defences which may or may not be allowed in prosecutions under this Act —
(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves—
(a) that he purchased the article of food—
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.
(3) Any person by whom a warranty as is referred to in section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence.
COMMENTS
A person is entitled to benefit under sub-section (2) of section 19 if the fact of the case suggests that he (accused person) has duly discharged the burden to the extent necessary under the above mentioned provision; P. Unnikrishnan v. Food Inspector, Palghat Municipality, AIR 1995 SC 1983.
20. Cognizance and trial of offences —
(1) No prosecution for an offence under this Act, not being an offence under section 14 or section 14A shall be instituted except by, or with the written consent of, the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government:
Provided that a prosecution for an offence under this Act may be instituted by a purchaser or recognised consumer association referred to in section 12, if he or it produces in court a copy of the report of the public analyst alongwith the complaint.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under sub-section (1AA) of section 16 shall be cognizable and non-bailable.
COMMENTS
(i) The language of sub-section (1) of section 20 of the Act clearly shows that it inhibits institution of prosecution for an offence under the Act except on fulfilment of one or the other of the two conditions. Either the prosecution must be instituted by the Central Government or the State Government or it must be instituted with the written consent of any of the four specified categories of authorities or persons. If either of these two conditions is satisfied, there would be sufficient authority for the institution of such a prosecution for an offence under the Act; A.K. Roy v. State of Punjab, AIR 1986 SC 2160.
(ii) The Chief Medical Officer, Chandigarh undisputedly was a person authorised to institute complaint as per the notification issued by the Administration under section 20(1) of the Act therefore, he could give his consent as well for launching of prosecution. In doing so he was neither delegating his power nor acting contrary to section 20. He was acting within the scope of authority as a person authorised to institute complaint under section 20(1) of the Act has been placed at par with other authorities designated in the sub-section for purposes of granting consent; Food Inspector, Health Deptt., Chandigarh v. M/s Krishna Dhaba, AIR 1994 SC 664.
(iii) No prosecution for an offence under the Prevention of Food Adulteration Act, 1954 shall be instituted except by written consent of Central Government or State Government. Where cognizance was taken on the F.I.R. lodged by the police but there is nothing on record that police was authorised by the Central Government or State Government to institute the prosecution. Then court has no power to hear the complaint thereby rendering the consequent proceedings liable to be quashed; Yamuna Sah v. State of Bihar, 1990(2) FAC 16.
20A. Power of court to implead manufacturer, etc. —
Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the court may, notwithstanding anything contained in sub-section (3) of section 319 of the Code of Criminal Procedure, 1973 (2 of 1974) or in section 20 proceed against him as though a prosecution had been instituted against him under section 20.
COMMENTS
(i) Under section 20A powers cannot be exercised before the commencement of trial because it is only on the basis of evidence produced that the Magistrate can act under this section; Radha Krishna Nair v. Food Inspector, 1989(1) FAC 234.
(ii) The power to implead the manufacturer, distributor or dealer under the section 20A of the Act can be exercised during the trial of an offence under the Act; M/s. Thakur Das Babu Ram v. State of Himachal Pradesh, 1989(1) FAC 343.
20 AA. Application of the Probation of Offenders Act, 1958 and section 360 of the Code of Criminal Procedure, 1973 —
Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958), or section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age.
21. Magistrate’s power to impose enhanced penalties —
Notwithstanding anything contained in section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the first class to pass any sentence authorised by this Act, except a sentence of imprisonment for life or for a term exceeding six years, in excess of his powers under the said section.
22. Protection of action taken in good faith —
No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act.
22A. Power of Central Government to give directions —
The Central Government may give such directions as it may deem necessary to a State Government regarding the carrying into execution of all or any of the provisions of this Act and the State Government shall comply with such directions.
23. Power of the Central Government to make rules —
(1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of this Act:
Provided that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen which render it necessary to make rules without such consultation, but, in such a case, the Committee shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the amendment of the said rules.
(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :—
(a) specifying the articles of food or classes of food for the import of which a licence is required and prescribing the form and conditions of such licence, the authority empowered to issue the same the fees payable therefor, the deposit of any sum as security for the performance of the conditions of the licence and the circumstances under which such licence or security may be cancelled or forfeited;
(b) defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food;
(c) laying down special provisions for imposing rigorous control over the production, distribution and sale of any article or class of articles of food which the Central Government may, by notification in the Official Gazette, specify in this behalf including registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such article or class of articles;
(d) restricting the packing and labelling of any article of food and the design of any such package or label with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article or to preventing adulteration;
(e) defining the qualifications, powers and duties of food inspectors and public analyst;
(ee) defining the laboratories where samples of articles of food or adulterants may be analysed by public analysts under this Act;
(f) prohibiting the sale of defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food;
(g) defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health;
(h) specifying the manner in which containers for samples of food purchased for analysis shall be sealed up or fastened up;
(hh) defining the methods of analysis;
(i) specifying a list of permissible preservatives, other than common salt and sugar, which alone shall be used in preserved fruits, vegetables or their products or any other article of food as well as the maximum amounts of each preservative;
(j) specifying the colouring matter and the maximum quantities thereof which may be used in any article of food;
(k) providing for the exemption from this Act or of any requirements contained therein and subject to such conditions, if any, as may be specified, of any article or class of articles of food;
(l) prohibiting or regulating the manufacture, transport or sale of any article known to be used as an adulterant of food;
(m) prohibiting or regulating—
(i) the addition of any water, or other diluent or adulterant to any article of food;
(ii) the abstraction of any ingredient from any article of food;
(iii) the sale of any article of food to which such addition or from which such abstraction has been made or which has been otherwise artificially treated;
(iv) the mixing of two or more articles of food which are similar in nature or appearance;
providing for the destruction of such articles of food as are not in accordance with the provisions of this Act or of the rules made thereunder.
14. Manufacturers, distributors and dealers to give warranty —
No manufacturer or distributor of, or dealer in any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor:
Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section.
Explanation — In this section, in sub-section (2) of section 19 and in section 20A, the expression "distributor" shall include a commission agent.
14A. Vendor to disclose the name, etc., of the person from whom the article of food was purchased —
Every vendor of an article of food shall, if so required, disclose to the food inspector the name, address and other particulars of the person from whom he purchased the article of food.
15. Notification of food poisoning —
The Central Government or the State Government may, by notification in the Official Gazette, require medical practitioners carrying on their profession in any local area specified in the notification to report all occurrences of food poisoning coming within their cognizance to such officer as may be specified in the notification.
16. Penalties —
(1) Subject to the provisions of sub-section (1A) if any person—
(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sales or stores, sells or distributes any article of food—
(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
(ii) other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder; or
(b) whether by himself or by any other person on his behalf, imports into India or manufactures for sales or stores, sells or distributes any adulterant which is not injurious to health; or
(c) prevents a food inspector from taking a sample as authorised by this Act; or
(d) prevents a food inspector from exercising any other power conferred on him by or under this Act; or
(e) being a manufacturer of an article of food, has in his possession, or in any of the premises occupied by him, any adulterant which is not injurious to health; or
(f) uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory or by a public analyst or any extract thereof for the purpose of advertising any article of food; or
(g) whether by himself or by any other person on his behalf, gives to the vendor a false warranty in writing in respect of any article of food sold by him, he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees:
Provided that—
(i) if the offence is under sub-clause (i) of clause (a) and is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of clause (ix) of section 2; or
(ii) if the offence is under sub-clause (ii) of clause (a), but not being an offence with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1A) of section 23 or under clause (b) of sub-section (2) of section 24. the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees:
Provided further that if the offence is under sub-clause (ii) of clause (a) and is with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1A) of section 23 or under clause (b) of sub-section (2) of section 24, the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees.
(1A) If any person whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes,—
(i) any article of food which is adulterated within the meaning of any of the sub-clauses (e) to (l) (both inclusive) of clause (ia) of section 2; or
(ii) any adulterant which is injurious to health, he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than one year but which may extend to six years and with fine which shall not be less than two thousand rupees:
Provided that if such article of food or adulterant when consumed by any person is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860), he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees.
(1AA) If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, tampers or in any other manner interferes with such article, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which shall not be less than one thousand rupees.
(1B) If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, sells or distributes such article which is found by the magistrate before whom it is produced to be adulterated within the meaning of sub-clause (h) of clause (ia) of section 2 and which, when consumed by any person, is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860), then, notwithstanding anything contained in sub-section (1AA), he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees.
(1C) If any person contravenes the provisions of section 14 or section 14A, he shall be punishable with imprisonment for a term which may extend to six months and with fine which shall not be less than five hundred rupees.
(1D) If any person convicted of an offence under this Act commits a like offence afterwards, then, without prejudice to the provisions of sub-section (2), the court, before which the second or subsequent conviction takes place, may order the cancellation of the licence, if any, granted to him under this Act and thereupon such licence shall, notwithstanding anything contained in this Act, or in the rules made thereunder, stand cancelled.
(2) If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or subsequent conviction takes place to cause the offender’s name and place of residence, the offence and the penalty imposed to be published at the offender’s expense in such newspapers or in such other manner as the court may direct. The expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine.
COMMENTS
(i) The sample of milk procured from the accused (milk vendor) was declared to be adulterated on the sole ground that there was some deficiency in milk solids, non-fats. Since the adulteration is of a minor nature, the conviction of accused is reduced from 3 months imprisonment to fine; Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226.
(ii) Where til oil was not commonly used in the area for human consumption, accused could not be found guilty and his conviction was to be set aside; Laxmidhar Sahu v. State of Orissa, 1989 (1) FAC 364 ; 1989 FAJ 463.
16A. Power of court to try cases summarily —
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under sub-section (1) of section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:
Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the magistrate to pass a sentence of imprisonment for a term not exceeding one year:
Provided further that when at the commencement of, or in the course of, a summary trial under this section it appears to the magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
COMMENTS
This section is an exception to section 262(2) of the Code of Criminal Procedure, 1973 (2 of 1974). The word ‘shall’ may be understood as ‘may’ when a case is tried in a summary way. The procedure to be followed is of a summons case; Chandak v. Food Inspector, 1990 (1) FAC 76.
17. Offences by companies —
(1) Where an offence under this Act has been committed by a company —
(a) (i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereafter in this section referred to as the person responsible), or
(ii) where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and
(b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.
(2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated.
Explanation —Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.
(3) The person nominated under sub-section (2) shall, until—
(i) further notice cancelling such nomination is received from the company by the Local (Health) Authority; or
(ii) he ceases to be a director or, as the case may be, manager of the company; or
(iii) he makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination [which request shall be complied with by the Local (Health) Authority, whichever is the earliest, continue to be the person responsible:
Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of such cesser to the Local (Health) Authority:
Provided further that where such person makes a request under clause (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made.
(4) Notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company [not being a person nominated under sub-section (2) such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation — For the purposes of this section—
(a) "Company" means any body corporate and includes a firm or other association of individuals;
(b) "director", in relation to a firm, means a partner in the firm; and
(c) "manager", in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it.
COMMENTS
(i) It is clear from the scheme of section 17 of the Act that where a company has committed an offence under the Act, the person nominated under sub-section (2) to be incharge of, and responsible to, the company for the conduct of its business shall be proceeded against unless it is shown that the offence was committed with the consent/connivance/negligence of any other Director, Manager, Secretary or Officer of the company in which case the said person can also be proceeded against and punished for commission of offence; R.Banerjee v. H.D. Dubey, AIR 1992 SC 1168.
(ii) The person incharge of the company must be prosecuted alongwith the company under this section; State of Assam v. Paban Kumar Aggarwal, 1990 (1) FAC 115.
(iii) In the absence of specific pleadings in the complaint regarding the person incharge of and responsible to the conduct of the business, the prosecution launched against him is not maintainable and the same is to be quashed; Carborandum Universal Madras v. Food Inspector Thiruvettiyur Municipality, 1989 (1) FAC 367.
. Forfeiture of property —
Where any person has been convicted under this Act for the contravention of any of the provisions of this Act or of any rule thereunder, the article of food in respect of which the contravention has been committed may be forfeited to the Government:
Provided that where the court is satisfied that the article of food is capable of being made to conform to prescribed standards for human consumption after reprocessing, the court may order the article of food to be returned to the owner, on his executing a bond with or without sureties, for being sold, subject to the other provisions of this Act, after reprocessing under the supervision of such officer as may be specified therein.
19. Defences which may or may not be allowed in prosecutions under this Act —
(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves—
(a) that he purchased the article of food—
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.
(3) Any person by whom a warranty as is referred to in section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence.
COMMENTS
A person is entitled to benefit under sub-section (2) of section 19 if the fact of the case suggests that he (accused person) has duly discharged the burden to the extent necessary under the above mentioned provision; P. Unnikrishnan v. Food Inspector, Palghat Municipality, AIR 1995 SC 1983.
20. Cognizance and trial of offences —
(1) No prosecution for an offence under this Act, not being an offence under section 14 or section 14A shall be instituted except by, or with the written consent of, the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government:
Provided that a prosecution for an offence under this Act may be instituted by a purchaser or recognised consumer association referred to in section 12, if he or it produces in court a copy of the report of the public analyst alongwith the complaint.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under sub-section (1AA) of section 16 shall be cognizable and non-bailable.
COMMENTS
(i) The language of sub-section (1) of section 20 of the Act clearly shows that it inhibits institution of prosecution for an offence under the Act except on fulfilment of one or the other of the two conditions. Either the prosecution must be instituted by the Central Government or the State Government or it must be instituted with the written consent of any of the four specified categories of authorities or persons. If either of these two conditions is satisfied, there would be sufficient authority for the institution of such a prosecution for an offence under the Act; A.K. Roy v. State of Punjab, AIR 1986 SC 2160.
(ii) The Chief Medical Officer, Chandigarh undisputedly was a person authorised to institute complaint as per the notification issued by the Administration under section 20(1) of the Act therefore, he could give his consent as well for launching of prosecution. In doing so he was neither delegating his power nor acting contrary to section 20. He was acting within the scope of authority as a person authorised to institute complaint under section 20(1) of the Act has been placed at par with other authorities designated in the sub-section for purposes of granting consent; Food Inspector, Health Deptt., Chandigarh v. M/s Krishna Dhaba, AIR 1994 SC 664.
(iii) No prosecution for an offence under the Prevention of Food Adulteration Act, 1954 shall be instituted except by written consent of Central Government or State Government. Where cognizance was taken on the F.I.R. lodged by the police but there is nothing on record that police was authorised by the Central Government or State Government to institute the prosecution. Then court has no power to hear the complaint thereby rendering the consequent proceedings liable to be quashed; Yamuna Sah v. State of Bihar, 1990(2) FAC 16.
20A. Power of court to implead manufacturer, etc. —
Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the court may, notwithstanding anything contained in sub-section (3) of section 319 of the Code of Criminal Procedure, 1973 (2 of 1974) or in section 20 proceed against him as though a prosecution had been instituted against him under section 20.
COMMENTS
(i) Under section 20A powers cannot be exercised before the commencement of trial because it is only on the basis of evidence produced that the Magistrate can act under this section; Radha Krishna Nair v. Food Inspector, 1989(1) FAC 234.
(ii) The power to implead the manufacturer, distributor or dealer under the section 20A of the Act can be exercised during the trial of an offence under the Act; M/s. Thakur Das Babu Ram v. State of Himachal Pradesh, 1989(1) FAC 343.
20 AA. Application of the Probation of Offenders Act, 1958 and section 360 of the Code of Criminal Procedure, 1973 —
Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958), or section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age.
21. Magistrate’s power to impose enhanced penalties —
Notwithstanding anything contained in section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the first class to pass any sentence authorised by this Act, except a sentence of imprisonment for life or for a term exceeding six years, in excess of his powers under the said section.
22. Protection of action taken in good faith —
No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act.
22A. Power of Central Government to give directions —
The Central Government may give such directions as it may deem necessary to a State Government regarding the carrying into execution of all or any of the provisions of this Act and the State Government shall comply with such directions.
23. Power of the Central Government to make rules —
(1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of this Act:
Provided that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen which render it necessary to make rules without such consultation, but, in such a case, the Committee shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the amendment of the said rules.
(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :—
(a) specifying the articles of food or classes of food for the import of which a licence is required and prescribing the form and conditions of such licence, the authority empowered to issue the same the fees payable therefor, the deposit of any sum as security for the performance of the conditions of the licence and the circumstances under which such licence or security may be cancelled or forfeited;
(b) defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food;
(c) laying down special provisions for imposing rigorous control over the production, distribution and sale of any article or class of articles of food which the Central Government may, by notification in the Official Gazette, specify in this behalf including registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such article or class of articles;
(d) restricting the packing and labelling of any article of food and the design of any such package or label with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article or to preventing adulteration;
(e) defining the qualifications, powers and duties of food inspectors and public analyst;
(ee) defining the laboratories where samples of articles of food or adulterants may be analysed by public analysts under this Act;
(f) prohibiting the sale of defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food;
(g) defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health;
(h) specifying the manner in which containers for samples of food purchased for analysis shall be sealed up or fastened up;
(hh) defining the methods of analysis;
(i) specifying a list of permissible preservatives, other than common salt and sugar, which alone shall be used in preserved fruits, vegetables or their products or any other article of food as well as the maximum amounts of each preservative;
(j) specifying the colouring matter and the maximum quantities thereof which may be used in any article of food;
(k) providing for the exemption from this Act or of any requirements contained therein and subject to such conditions, if any, as may be specified, of any article or class of articles of food;
(l) prohibiting or regulating the manufacture, transport or sale of any article known to be used as an adulterant of food;
(m) prohibiting or regulating—
(i) the addition of any water, or other diluent or adulterant to any article of food;
(ii) the abstraction of any ingredient from any article of food;
(iii) the sale of any article of food to which such addition or from which such abstraction has been made or which has been otherwise artificially treated;
(iv) the mixing of two or more articles of food which are similar in nature or appearance;
providing for the destruction of such articles of food as are not in accordance with the provisions of this Act or of the rules made thereunder.