1. The Registry is directed to issue notice to all the States and Union Territories which are already not made parties in this writ petition.
2. Mr Irshad Ahmad, Additional Advocate General appearing for the State of Uttar Pradesh, submitted that he will give the entire details of the cases where they have registered charges under Section 272 of the Penal Code, 1860.
3. We have indicated in our order dated 5-12-2013 (2014) 13 SCC 314 , (2014) 5 SCC (Cri) 647 of the extreme necessity for carrying proper amendments by various States to Section 272 IPC in the light of the amendments made by States like Uttar Pradesh, West Bengal and Odisha. The necessity of such amendment has been highlighted in our order. We have clearly indicated the modus operandi adopted by various persons in adulterating milk. It has been noticed that consumption of synthetic milk is hazardous to health as urea and caustic soda are harmful for heart, liver and kidneys and also lead to cancer. We have indicated that the state of affairs is very alarming causing serious health hazards to the people of this country.
4. In spite of the fact that these types of offences are noticed all over the country, no steps are being taken by various States either to make it a serious offence by amending Section 272 of the Code or carrying out inspections and proper monitoring of the activities of various milk vendors.
5. We have also gone through the various affidavits filed by certain States, but we are not happy with the details furnished, which are not comprehensive. Details of the various offences committed by the milk vendors have not been properly stated in the affidavits. Affidavits should also highlight as to whether the vendors are indulging in the practice of using urea, caustic soda, refined paint and other similar materials in the milk, which is being sold in open market.
6. We are inclined to direct all the State Governments to file their respective comprehensive affidavit giving details of the number of inspections conducted during the last two years and the steps they have taken to remedy this. The affidavits shall also state the number of prosecutions initiated, the provisions under which they have been initiated, number of cases pending and the punishment inflicted.
7. Pursuant to our earlier order, Shri Ram Khanna is present in Court on behalf of the Voluntary Consumer Association (Voice), who said he will assist the Court since their Association has conducted a detailed research on the subject. He is permitted to file his affidavit along with relevant documents. Mr Rakesh Khanna, learned Additional Solicitor General, also submitted that he will give a detailed report of the stand taken by 27 States in a tabulated forum.
8. We direct all the States to have their detailed responses on the abovementioned facts within a period of three weeks from today. Copies of these affidavits be also handed over to Shri Ram Sharma.
9. Put up on 20-2-2014.
(2016) 9 SCC 704
Order dated 27-2-2014
(Before K.S.P. Radhakrishnan and Vikramajit Sen, JJ.)
Writ Petition (Civil) No. 159 of 2012
10. The learned counsel appearing for the State of U.P. submitted that in view of the judgment of the Division Bench of the High Court of Allahabad in Pepsico India Holdings (P) Ltd. v. State of U.P. (2010) 6 All LJ 30 and connected matters the State is not in a position to take any coercive steps under Sections 272 and 273 IPC.
11. Considering the gravity of the situation as well as in larger public interest it is highly necessary that the Union of India should think of making appropriate amendments in the Food Safety and Standards Act, 2006, so that such type of crimes could be curbed to a large extent. The Union of India would file their response to it on or before 13-3-2014.
12. Considering the fact that this writ petition has a direct impact on the issue involved in Crl. As. Nos. 476-78 of 2012 arising out of SLPs (Crl.) Nos. 9346-48 of 2010, let these matters may also be tagged along with this writ petition.
13. The learned counsel appearing for the State of Punjab would ascertain as to whether any SLP is pending against the judgment in Jatinder Kumar Jain v. State of Punjab (2008) 2 FAC 437 (P&H).
14. The learned counsel for the petitioner brought to our knowledge a study conducted by the Himalayan Institute of Medical Sciences, Jolly Grant, Dehradun (HIMS), report of which is published in Indian Journal of Community Health, Vol. 24, No. 3, July 2012-September 2012, which indicates that the milk samples of nearby places were subjected to certain tests to ascertain adulteration. The Milk Adulteration Test kits supplied by NICE Chemicals Pvt. Ltd., (an ISO 9001 certified company) were chemically tested (sic were used to chemically test) for the detection of urea, neutralisers, detergents, hydrogen peroxide, sodium chloride and presence of acidity and heat stability, etc. Test report ultimately indicates that all the milk samples including double-toned milk collected from different places showed presence of urea and detergents as common adulterants. The State of Uttaranchal would take note of the study conducted by the above Institution and submit their response within two weeks. The Registry is directed to make available a copy of the affidavit filed by the Voice Society, on 3-2-2014, to the learned counsel for the State of Uttaranchal.
15. We have perused the affidavit filed by the State of Maharashtra; Para 8(c) of the same is extracted herein;
“Since 5-8-2011 to 31-3-2013 I say that 1466 milk samples are taken for testing their quality and out of 1466 samples, it was found that 356 samples were not up to the standard, and 33 samples were reported unsafe as they were containing milk powder and/or added sugar. No sample was reported containing adulterants like formalin, urea and detergent.”
16. However, an affidavit has been filed by Mr Kamal Kumar, presently working as Assistant Director (Legal) with Food Safety and Standards Authority of India, FDA Bhawan, Kotla Road, New Delhi, along with a chart wherein, at p. 133 of the compilation, he has stated that in Maharashtra during 1-4-2012 to 31-3-2013, twelve samples were tested and there was presence of urea, starch/blotting paper, glucose/sugar, caustic soda, refined white paint, detergent or shampoo, etc. Further, it is also stated that from 1-4-2012 to 31-3-2013 again nine samples were tested, the samples also find the presence of the abovementioned ingredients. Prima facie, we find that there is conflict in the details given in both the affidavits.
17. Under such circumstances, we are inclined to direct the Joint Commissioner (Food), Food and Drug Administration, State of Maharashtra to file an affidavit explaining this conflict between these two affidavits giving further details. The Union of India will also file a report before preparing the affidavit on or before 13-3-2014.
18. Post on 13-3-2014.
(2016) 9 SCC 706
Order dated 11-11-2014
(Before M. Yusuf Eqbal and Shiva Kirti Singh, JJ.)
Writ Petition (Civil) No. 159 of 2012 with SLP (Crl.) No. 1379 of 2011, Crl. As. Nos. 472, 476-79 of 2012
19. In this writ petition, by way of public interest litigation, the petitioners have prayed for issuance of appropriate direction to the Union of India and State Governments concerned to take effective and necessary measures to completely rule out the sale of adulterated and synthetic milk which is allegedly prepared by materials like urea, detergent, refined oil, caustic soda, etc., which are very hazardous to human life. This Court entertained the writ petition and issued orders and directions on 2-7-2013 2013 SCC OnLine SC 1295, within a period of three weeks. No further time will be granted. Post on 31-7-2013 (NMD) for final disposal. Pleadings are to be completed before the said date. The learned counsel for the petitioners is also directed to serve a copy of the writ petition upon the Standing Counsel for the State of Maharashtra, 5-12-2013 (2014) 13 SCC 314 , (2014) 5 SCC (Cri) 647 and 27-2-2014.
20. Following the orders, the officers who are in charge of the Food Safety and Standards in the States of NCT of Delhi, Uttar Pradesh, Rajasthan and Haryana, explained various steps they have taken to implement the provisions of the Food Safety and Standards Act, 2006. This Court also noticed the article dated 17-2-2012, published by a Voluntary Consumer Association (Voice) that synthetic milk is prepared by mixing urea, starch/blotting paper, glucose/sugar, caustic soda, refined white paint, detergent or shampoo and the practice is going unabatedly.
21. This Court also took notice of the fact that consumption of the synthetic milk is hazardous to health as urea and caustic soda are harmful for heart, liver and kidneys and also lead to cancer.
22. On 27-2-2014, the matter was heard and considering the gravity of the situation as well as in larger public interest, this Court found it necessary that the Union of India should think of making appropriate amendments in the Food Safety and Standards Act, 2006, so that such type of crimes could be curbed to a large extent. It was brought to our notice that a study conducted by the Himalayan Institute of Medical Sciences, Jolly Grant, Dehradun (HIMS), Report of which is published in Indian Journal of Community Health, Vol. 24, No. 3, July 2012-September 2012, which indicates that the milk samples of nearby places were subjected to certain tests to ascertain adulteration. Test report ultimately indicated that all the milk samples including double-toned milk collected from different places showed presence of urea and detergents as common adulterants.
23. In the said scenario, the Union of India and the State Governments must come with suitable amendments in the Act or with a new legislation to curb and stop adulteration and production of synthetic milk which is consumed not only by the infants but also by public at large.
24. Ms Indira Sawhney, learned counsel appearing for the Union of India, submits that the matter has been taken up by the Central Government and the same is in progress.
25. We hope and trust that during the ensuing winter sessions of Parliament, the Central Government will take appropriate decision in this regard. In the meanwhile, we direct Ms Indira Sawhney, learned counsel appearing for the Union of India, to submit a status report and the progress made in this regard within a period of four weeks from today. Put up on 10-12-2014.
26. Needless to say that all the State Governments shall also take appropriate steps to detect such malpractices and to make the punishment as deterrent as possible.
(2016) 9 SCC 707
Order dated 10-12-2014
(Before M. Yusuf Eqbal and Shiva Kirti Singh, JJ.)
Writ Petition (Civil) No. 159 of 2012 with SLP (Crl.) No. 1379 of 2011, Crl. As. Nos. 472, 476-79 of 2012
27. Pursuant to this Court's order dated 11-11-2014, the respondent Union of India has filed an affidavit stating inter alia that the Food Safety and Standards (Amendment) Bill, 2014 was introduced in the Rajya Sabha for amending Sections 5 and 92 of the Food Safety and Standards Act, 2006 (34 of 2006) and to insert a new section, “Section 7-A”, for the purpose of effective functioning and implementation of the Food Safety and Standards Act, 2006. However, the said Bill was withdrawn and referred to the Parliamentary Standing Committee on Health and Family Welfare for examination and for making necessary and important changes in the said Bill. The said Committee recommended that the Government may re-look into all aspects of the matter and come up with a comprehensive Bill at the earliest. Accordingly, the Ministry of Health & Family Welfare is comprehensively reviewing the Food Safety and Standards Act, 2006 in compliance with the directions given by this Court and also proposing to make necessary changes in the light of representations received from the Food Business Operators (FBOs).
28. From the aforesaid affidavit, it does not appear that the respondents are also proposing to make necessary amendments in the penal provisions of the Food Safety and Standards Act, 2006 so that the punishment must be deterrent.
29. 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. We direct the respondent Union of India to submit a status report in this regard on the next date of hearing.
30. At the request of Ms Indira Sawhney, learned counsel appearing for the respondent Union of India, list these matters on 3-2-2015 along with the aforesaid status report.
31. 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 on a par with the provisions contained in the Penal Code and the States amendments made therein.
(2016) 9 SCC 708
Order dated 5-8-2016
(Before Dr T.S. Thakur, C.J. and R. Banumathi and Uday U. Lalit, JJ.)
Writ Petition (Civil) No. 159 of 2012 with SLP (Crl.) No. 1379 of 2011, Crl. As. Nos. 472, 476-79 of 2012
The Judgment of the Court was delivered by
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 States 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, the Union of India has also been made a party-respondent. The petitioners allege that the State Governments concerned and the 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.
33. The petitioners have relied on a report dated 2-1-2011 titled “Executive Summary on National Survey on Milk Adulteration, 2011” released by the Food Safety and Standards Authority of India (Fssai) which concluded that on a national level, 68.4% 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 the the Union of India and the State Governments concerned 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.
34. In compliance with various orders passed by this Court, all the States have filed affidavits stating that ever since the 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. The 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 the FSS Act and penal laws.
35. We have heard the learned counsel appearing for the petitioners, the Union of India and the counsel appearing for various States.
36. On behalf of the 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 Parliament has enacted the Food Safety and Standards Act, 2006 and the 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. Parliament has enacted the 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.”
37. 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.
38. 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 realise 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:
(i) Licensing for manufacture of food products, which is presently granted by the Central agencies under various Acts and orders, would stand decentralised 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.
39. Exercising power under the Act, the 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 5-8-2011. In exercise of the powers conferred by clause (o) of sub-section (2) of Section 92 read with Section 31 of the FSS Act, Central Government framed regulations viz. Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011. Under the said Regulations by virtue of Regulation 2.1, all food businesses and food operators are required to obtain licence and get themselves registered as per the provisions of the FSS Regulations, 2011. The definitions of the food operator, food business and food are laid down under Sections 3(o), 3(n) and 3(j), respectively of the FSS Act, 2006. Likewise, in exercise of powers conferred by clause (k) of sub-section (2) of Section 92 read with Section 23 of the FSS Act, Regulations insofar as they relate to Food Safety and Standards (Packaging and Labelling) Regulations, 2011 were made.
40. 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.”
41. 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.
42. As per the Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011, the dairy establishment in which dairy based food is being handled, processed, manufactured, stored and distributed and ultimately sold by the food business operator should conform to the sanitary and hygienic requirements, food safety measures and other standards as laid down in Part III of the 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 the Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011.
43. 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 standardised 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 pasteurised 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 flavour, edible food colours and cane sugar. Flavoured milk shall be pasteurised, sterilised 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 standardised 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 pasteurised. 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 homogenised product prepared from milk fat, non-fat milk solids and water. Recombined milk shall be pasteurised 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 standardised 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 pasteurised 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 standardised 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 pasteurised 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.”
44. Chapter 2 of the said Regulations deals with Food Product Standards. As per Regulation 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 Businesses) Regulations, 2011 prescribes specific hygienic and basic sanitary measures to be followed by the Food Business Operators.
45. Sections 50 to 65 of the 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, the State of Uttar Pradesh has amended Section 272 of the Penal Code, 1860 by enhancing the sentence to imprisonment for life and also fine. Similar amendment has been made by the States of West Bengal and Odisha. The State of Madhya Pradesh in its counter-affidavit has stated that it has also decided to amend Section 272 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 5-12-2013 (2014) 13 SCC 314 , (2014) 5 SCC (Cri) 647 and 30-1-2014 has directed similar amendments to be made in other States as well. Vide its order dated 10-12-2014, this Court directed the Union of India to come up with necessary amendments in the Food Safety and Standards Act, 2006 and also in the Penal Code to make penal provisions on a par with State Amendments.
46. In its counter-affidavit filed on 19-2-2014 Fssai has stated that the High Court of Judicature at Allahabad in Pepsico India Holdings (P) Ltd. v. State of U.P. (2010) 6 All LJ 30 vide judgment dated 8-9-2010 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 the Food Safety and Standards Act, 2006. In the said case by an order dated 11-5-2010 the 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 Sections 272/273 IPC in case of adulteration of any article or drink. The High Court of Allahabad, vide its judgment dated 8-9-2010 (2010) 6 All LJ 30 has quashed the said government order against which the State of Uttar Pradesh has preferred appeals before this Court in Criminal Appeals Nos. 476-78 of 2012 which, as indicated hereunder, are ordered to be delinked. As the question of invoking Sections 272/273 IPC for violation under the 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 the Food Safety and Standards Act, 2006 along with 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.
47. 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 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 (sic and Union Territories). The samples were sent to various government laboratories, namely, Department of Food and Drug Testing, Government of Puducherry; Central Food Laboratory, Pune; Food Research and Standardisation Laboratory, Ghaziabad; State Public Health Laboratory, Guwahati and Central Food Laboratory, Kolkata for analysis. The following parameters were analysed such as fat (%), SNF (%), neutralisers, acidity, hydrogen peroxide, sugar, starch, glucose, urea, salt, detergent, skimmed milk powder and vegetable fat to ascertain the presence of adulterant.
48. 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: 2-1-2012, 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 neutralisers 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%), Uttarakhand (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.”
49. 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.
50. To safeguard infants/children and general public from dangers of adulteration of milk, Fssai mandates an upper limit for certain micro-organisms in pasteurised milk, these norms are necessary because it is stated that even milk from healthy cows and buffaloes is vulnerable to bacterial contamination once it is stored for some time at normal temperature. It is stated that besides minor skin infections, some bacteria can cause life endangering diseases such as pneumonia and diarrhoea.
51. In the interim order dated 5-12-2013 (2014) 13 SCC 314 , (2014) 5 SCC (Cri) 647, 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 30-1-2014, this Court directed the 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 with those orders, all the States have filed their responses indicating the inspection done, number of prosecutions launched and status of those cases.
52. Considering the seriousness of the offence and referring to the amendment to Section 272, Penal Code made by the 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 5-12-2013 (2014) 13 SCC 314 , (2014) 5 SCC (Cri) 647, 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 30-1-2014 and this Court also directed the Union of India to consider bringing in suitable amendments to the FSS Act. On 13-3-2014, the counsel appearing for the Union of India produced a Letter dated 12-3-2014 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 the 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.
53. When the matter came up for hearing on 10-12-2014, the Union of India submitted that the bill seeking to amend the FSS Act by inserting a new section “Section 7-A” 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 on a par with the provisions contained in the Penal Code and the States Amendments made therein.”
54. 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 on a par with the provisions contained in the State amendments as indicated above.
55. As observed by this Court in the orders dated 5-12-2013 (2014) 13 SCC 314 , (2014) 5 SCC (Cri) 647 and 10-12-2014, it will be in order, if the Union of India considers making suitable amendments in the penal provisions on a par with the provisions contained in the State amendments to the Penal Code. It is also desirable that the 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.
56. 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:
56.1. The Union of India and the State Governments shall take appropriate steps to implement the Food Safety and Standards Act, 2006 in a more effective manner.
56.2. The 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.
56.3. The 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.
56.4. The 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. The State Government to ensure that State food testing laboratories/district food laboratories are well-equipped with the technical persons and testing facilities.
56.5. 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.
56.6. Since the snap shot survey conducted in 2011 revealed adulteration of milk by hazardous substances including chemicals, such snap shot surveys to be conducted periodically both in the State as well as at the national level by Fssai.
56.7. 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 District Collector concerned 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.
56.8. To prevent adulteration of milk, the State Department concerned shall set up a website thereby specifying the functioning and responsibilities of the 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.
56.9. In order to increase consumer awareness about the 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.)
56.10. The Union of India/State Governments to evolve a complaint mechanism for checking corruption and other unethical practices of the Food Authorities and their officers.
57. Special Leave Petition (Crl.) No. 1379 of 2011, Criminal Appeals Nos. 472, 476-79 of 2012 are ordered to be de-tagged.
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