Implementation of PFA ACT/ Rules: Role of Food Inspector

Food Laws

Implementation of PFA ACT/ Rules: Role of Food Inspector

Saurabh Sharma

FOOD is one of the essentials of life so it should be pure nutritious and free from any type of adulteration for proper maintenance of human health. It is the duty of every Government to make available unadulterated food in the country. The Prevention of Food Adulteration Act, 1954 and Rules, 1955 were therefore enacted in India (Kapur and Krishnamurthy, 1981).

Implementation of the Act

In Delhi a separate Directorate of Prevention of Food Adulteration is entrusted with the responsibility of implementation of the provisions of PFA Act and Rules. The Food Inspector (FI) and Public Analyst are the kingpin for the truthful and unbiased implementation of the PFA Act (Jaiswal,1987). The Act empowers the former to lift food samples under the supervision of Sub Divisional Magistrate (SDM) who has been given powers of Local Health Authority (LHA) under the PFA Act/ Rules. The latter is responsible for laboratory activities and test reports for the food samples lifted and sent by the Food Inspector. A greater degree of responsibility lies with the Public Analyst as on the basis of his report a conclusion is drawn, as to whether the prosecution should be launched. The test report also signifies the nature and degree of adulteration. This article discusses the role of Food Inspector for Implementation of PFA Act/ Rules is discussed.

Powers of Food Inspectors

The PFA Act and Rules have bestowed the following powers to FIs for implementation of PFA Act and Rules (Jain, 2006)-

(1) A food inspector shall have power –
(a)      To take samples of any article of food from –(i)  Any person selling such article;
(ii) Any person who is in the course of conveying delivering or preparing to deliver such article to a purchaser or consignee;
(iii)     A consignee after delivery of any such article to him; and
(b)     To send such sample for analysis to the public analyst for the local area within which such sample has been taken.
(c) With the previous approval of the Local (Health) Authority having jurisdiction in the local area concerned or with the previous approval of the Food (Health) Authority, to prohibit the sale of any article of food in the interests of public health.
[Explanation - For the purpose of sub-clause (iii) of clause (a) “consignee” does not include a person who purchases or receives any article of food for his own consumption.]

(2) Any food inspector may enter and inspect any place where any article of food is manufactured or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis.
Provided that no sample of any article of food, being primary food, shall be taken under this subsection if it is not intended for sale as such food.

(3) Where any sample is taken under clause (a) of sub-section (1) or sub-section (2), its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken.

(4) If any article intended for food appear to any food inspector to be adulterated or misbranded, he may seize and carry away to keep in the safe custody of the vendor such article in order that it may be dealt with as hereinafter provided [and he shall, in either case, take sample of such article and submit the same for analysis to a public analyst].
[Provided that where the food inspector keeps such article in the safe custody of the vendor he may require the vendor to execute a bond for a sum of money equal to the value of such article with one or more sureties as the food inspector deems fit and the vendor shall execute the bond accordingly.]
[(4A) Where any article of food seized under subsection is of a perishable nature and the Local (Health) Authority is satisfied that such article of food is so deteriorated that is unfit for human consumption, the said Authority may, after giving notice in writing to the vendor, cause the same to be destroyed.]

(5) The power conferred by this section includes power to break open any package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale.
[Provided that the power to break open the package or door shall be exercised only after the owner or any other person in charge of the package or, as the case may be, in occupation of the premises, if he is present there in, refuses to open the package or door on being called upon to do so, and in either case after recording the reasons for doing so.]

Provided further that the food inspector shall, in exercising the powers of entry upon, and inspection of any place under this section, follow, as far as may be, the provisions of the Code of Criminal Procedure, 1973(2 of 1974) relating to the search or inspection of a place by a police officer executing a search warrant issued under that Code.

(6) [Any adulterant found in the possession of a manufacturer or distributor of, or dealer in, any article of food or in any of the premises occupied by him as such] and for the possession of which he is unable to account to the satisfaction of the food inspector [and any books of account or other documents found in his possession or control and which would be useful for or relevant to, any investigation] or proceeding under this Act, may be seized by the food inspector) and [a sample of such adulterant] submitted for analysis to a public analyst.

[Provided that no such books of account or other documents shall be seized by the food inspector except with the previous approval of the authority to which he is officially subordinate.]

(7) Where the food inspector takes any action under clause (a) of sub-section (1), sub-section (2), subsection (4) or sub-section (6), he shall [call one or more persons to be present at the time when such action is taken and take his or their signatures.]
(a)      Where any books of account or other documents are seized under sub section (6), the food inspector shall, within a period not exceeding thirty days from the date of seizure return the same to the person from whom they were seized after copies thereof extracts there from as certified by that person in such manner as may be prescribed have been taken.
Provided that where such person refuses to so certify, and a prosecution has been instituted against him under this Act, such books of account or other documents shall be returned to him only after copies thereof or extracts there from as certified by the court have been taken.
(b)      When any adulterant is seized under subsection (6), the burden of proving that such adulterant is not meant for purposes of adulteration shall be on the person from whose possession such adulteration was seized.

(8) Any food inspector may exercise the powers of a Police officer [under section 42 of the Code of criminal Procedure, 1973 (2 of 1974)] for the purpose of ascertaining the true name and residence of the person from whom a sample is taken or on article of food is seized.

(9) Any food inspector exercising power under this Act or under the rules made there under who –
(a)      vexatiously and without any reasonable grounds of suspicion seizes any article of food [or adulterant]; or
(b)      commits any other act to the injury of any person without having reason to believe that such act is necessary for the execution of his duty,
Shall be guilty of an offence, under this Act and shall be punishable for such offence [with fine which shall not be less than five hundred rupees but which may extend to one thousand rupees].

In view of the above mentioned powers a procedure has also been laid down under the PFA Act and Rules for the FIs for lifting the samples, seizure of the samples and other procedure followed by them.

Procedure to be followed by food inspectors

(1) When a food inspector takes a sample food for analysis he shall-
(a)      give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed under section 14A;
(b)      except in special cases provided by rules under this Act, divide the sample then and there into three parts and mark and seal or fasten up each part in such as manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in manner as may be prescribed.
Provided that where such person refuses to sign or put his thumb impression the food inspector shall call upon one or more witnesses and take his or their signatures or thumb impressions, as the case may be, in lieu of the signature or thumb impression of such person;
(c) (i) send one of the parts for analysis to the public analyst under intimation to the Local (Health) authority; and
(ii) send the remaining two part to the Local (Health) Authority for the purposes of sub -section (2) of this section and sub-section (2A) and (2E) of section 13.

(2) Where the part of the sample sent to the public analyst under sub-clause (1) of clause (c) of sub-section (1) is lost or damaged, the Local (Health) Authority shall, on a requisition made to it by the public analyst or the food inspector despatch one of the parts of the sample sent to it under sub-clause (ii) of the said clause (c) to the public analyst for analysis.

(3) When a sample of any article of food [or adulterant] is taken under sub-section (1) or sub-section (2) of section 10, [the food inspector shall, by the immediately succeeding working day, send a sample of the article of food or adulterant or both as the case may be] in accordance with the rules prescribed for sampling to the public analyst for the local area concerned.

(4) An article of food seized under sub-section (4) of section 10, unless destroyed under subsection (4A) of that section, and any adulterant seized under sub-section (6) of that section shall be produced before a magistrate as soon as possible and in any case not later than seven days after the receipt of report of the public analyst.
Provided that if an application is made to the magistrate in this behalf by the person from whom any article of food has been seized, the magistrate shall by order in writing direct the food inspector to produce such article before him within such time as may be specified in the order.

(5) If it appears to the magistrate on taking such evidence as he may deem necessary –
(a)      that the article of food produced before him under sub-section (4) is adulterated or misbranded, he may order it –
(i)  to be forfeited to the Central Government, the State Government or the Local authority, as the case may be; or
(ii) to be destroyed at the cost of the owner or the person from whom it was seized so as to prevent its being used as human food; or
(iii) to be so disposed of as to prevent its being again exposed for sale or used for food under its deceptive name; or
(iv)  to be returned to the owner, on his executing a bond with or without sureties, for being sold under its appropriate name, or where the magistrate is satisfied that the article of food is capable of being made confirming to prescribed standards for human consumption after reprocessing, for being sold after reprocessing under the supervision of such officer as may be specified in the order;
(b)      that the adulterant seized under sub-section (6) of section 10 and produced before him is apparently of a kind which may be employed for purposes of adulteration and for the possession of which the manufacturer, distributor or dealers, as the case may be, is unable to account satisfactorily, he may order it to be forfeited to the Central Government, the State Government or the Local authority, as the case may be

(6) [If it appears to the magistrate that any such –
(a)      Article of food is not adulterated; or
(b)      Adulterant which is purported to be an adulterant is not an adulterant,
The person from whose possession the article of food or adulterant was taken, shall be entitled to have it restored to him and it shall be in the discretion of the magistrate to award such person from such fund as the State Government may direct in this behalf, such compensation not exceeding the actual loss which he has sustained as the magistrate may think proper.

Duties of Food Inspectors

It shall be the duty of the food inspector -
(a)      To inspect as frequently as may be prescribed by the Food (Health) authority or the local authority all establishments licensed for the manufacture, storage or sale of an article of food within the area assigned to him
(b)      To satisfy himself that the conditions of the licenses are being observed;
(c) To procure and send for analysis, if necessary, samples of any articles of food which he has reason to suspect are being manufactured, stocked or sold or exhibited for sale in contravention of the provisions of the Act or rules there under,
(d)      To investigate any complaint which may be made to him in writing in respect of any contravention of the provisions of the Act, or rules framed therunder;
(e)      To maintain a record of all inspections made and action taken by him in the performance of his duties, including the taking of samples and the seizure of stocks, and to submit copies of such record to the health officer or the Food (Health) Authority as directed in this behalf
(f)  To make such enquiries and inspection as may be necessary to detect the manufacture, storage or sale of article of food in contravention of the Act or rules framed thereunder;
(g)      To stop any vehicle suspected to contain any food intended for sale or delivery for human consumption;
(h)      When so authorized by the health officer, having jurisdiction in the local area concerned or the Food (Health) Authority, to detain imported packages which he has reasons to suspect contain food, the import or sale of which is prohibited;
(i)  To perform such other duties as may be entrusted to him by the health officer having jurisdiction in the local area concerned [or the Local (Health) Authority] or the Food (Health) Authority;

In brief, under the provisions of the PFA Act and Rules, the role of Food Inspector is described in the following manner:

1.  As soon as the Food Inspector enters food establishment/ premises, he discloses his identity and intention to lift a sample of food article under the PFA Act to person found engaged in conducting the business there. The name and address of the person from whom the sample is to be taken is also confirmed. In case the firm/company has nominated any person under the PFA Act and Rules to be responsible for conducting the business, then in such case a sample is taken from him, if he is present there.
2.  Thereafter, the Food Inspector tries for public witness by asking the neutral person present there or by way of asking the neighbours to associate as public witness in sampling procedure In case no person agrees to, the Govt. officials accompanying the Food Inspectors are requested to associate in sampling procedure as public witnesses.
3.  Thereafter, under the supervision of SDM/LHA sample is selected and the same is purchased by the Food Inspector in prescribed quantity after properly mixing or homogenizing the sample as the case may be. The price of the so purchased article is also offered by the Food Inspector to the vendor, and a vendor receipt is prepared which bears the signature of vendor, public witness and the food inspector.
4.  Thereafter, the sample is equally divided in three parts and put into three clean and dry containers (if necessary preservative is also added) and the containers are properly marked, fastened and sealed as per provisions of the PFA Act and Rules and the paper slip carrying the signature and code number of the LHA is also pasted around the container in such a way that it passes through the bottom to the neck of the container, signature and date of the vendor is also taken in such a way that it party appears on the paper slip and party on the wrapper put on the container.
5.  Thereafter, a notice in form VI is prepared which in read over and explained to vendor. A copy of notice is issued to the vendor after obtaining his signature, date etc. and the signature of witness.
6.  At last, a panchnama is prepared which is read over and explained to vendor thereafter, the signature of vendor and witness is obtained on panchama.
7.  One counterpart of the sample in sealed packet alongwith form VII (memorandum to public analyst) is sent on the same date, or on the next working day by the Food Inspector either personally or through some messenger alongwith a separate letter (Form VII).
8.  The other two counterparts of the sample are kept in sealed packet alongwith copies of form VII and handed over to the Local (Health) Authority either on the same date or on the next working day by the Food Inspector for keeping it in safe custody of Local (Health) Authority.
9.  In cases the vendor refuses to sign the documents and on the packed containers in manner prescribed, then signature of the witness is obtained in lieu of the vendor.

Report of Public Analyst

The Public Analyst sends the report of the result of analysis to the concerned Local Health Authority. If the sample is found genuine, intimation is sent to the person from whom the sample was lifted. In case the sample is found adulterated, the case is investigated by the Food Inspector and prosecution is launched in the special designated court for the purpose and intimation is sent for this action to the vendor who may approach court within a period of ten days for sending the other counterpart to the Central Food Laboratory, in case the vendor feels the report sent by the Public Analyst was erroneous. The further action is taken by the Court in this regard.

Conclusion

Though PFA Act and Rules are Central legislature yet the responsibility of implementation has been entrusted to the State governments and Union territories. Each State Government and Union territory has created its own organization for implementation of the Act and Rules framed there under. The PFA Act makes provisions for prevention of adulteration of food, providing stringent punishments to the offenders and giving power to Food Inspectors and Public Analysts for implementation of food laws.

 

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References

1.  Kapur, O.P. and Krishnamurthy, M.N.(1981).Food Additives and Prevention of Food Adulteration Act. Indian Food Packer, 35(3): 56
2.  Jaiswal, P.K. (1987). The Prevention of Food Adulteration Act 1954 and its Rules 1955. Procedure for lifting food samples. Choice India. 3 (6): 31-35.
3.  Jain, A.K. (2006). Prevention of Food Adulteration Act, 1954 (37 of 1954) and Rules, 1955 9th Ed [as on PFA (10th Amdt. Rules), 2005]. Akalank Publications, New Delhi: 9-14,34-35.
 

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