Chapter VII
ENFORCEMENT OF THE ACT
29. Authorities responsible for enforcement of Act.
29. Authorities responsible for enforcement of Act.—(1) The Food Authority and the State Food Safety Authorities shall be responsible for the enforcement of this Act.
(2) The Food Authority and the State Food Safety Authorities shall monitor and verify that the relevant requirements of law are fulfilled by food business operators at all stages of food business.
(3) The authorities shall maintain a system of control and other activities as appropriate to the circumstances, including public communication on food safety and risk, food safety surveillance and other monitoring activities covering all stages of food business.
(4) The Food Safety Officers shall enforce and execute within their area the provisions of this Act with respect to which the duty is not imposed expressly or by necessary implication on some other authority.
(5) The regulations under this Act shall specify which of the Food Safety Officers are to enforce and execute them, either generally or in relation to cases of a particular description or a particular area, and any such regulations or orders may provide for the giving of assistance and information, by any authority concerned in the administration of the regulations or orders, or of any provisions of this Act, to any other authority so concerned, for the purposes of their respective duties under them.
(6) The Commissioner of Food Safety and Designated Officer shall exercise the same powers as are conferred on the Food Safety Officer and follow the same procedure specified in this Act.
30. Commissioner of Food Safety of the State.
30. Commissioner of Food Safety of the State.—(1) The State Government shall appoint the Commissioner of Food Safety for the State for efficient implementation of food safety and standards and other requirements laid down under this Act and the rules and regulations made thereunder.
(2) The Commissioner of Food Safety shall perform all or any of the following functions, namely:—
(a) prohibit in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in the whole of the State or any area or part thereof for such period, not exceeding one year, as may be specified in the order notified in this behalf in the Official Gazette;
(b) carry out survey of the industrial units engaged in the manufacture or processing of food in the State to find out compliance by such units of the standards notified by the Food Authority for various articles of food;
(c) conduct or organise training programmes for the personnel of the office of the Commissioner of Food Safety and, on a wider scale, for different segments of food chain for generating awareness on food safety;
(d) ensure an efficient and uniform implementation of the standards and other requirements as specified and also ensure a high standard of objectivity, accountability, practicability, transparency and credibility;
(e) sanction prosecution for offences punishable with imprisonment under this Act;
(f) such other functions as the State Government may, in consultation with the Food Authority, prescribe.
(3) The Commissioner of Food Safety may, by Order, delegate, subject to such conditions and restrictions as may be specified in the Order, such of his powers and functions under this Act (except the power to appoint Designated Officer, Food Safety Officer and Food Analyst) as he may deem necessary or expedient to any officer subordinate to him.
31. Licensing and registration of food business.
31. Licensing and registration of food business.—(1) No person shall commence or carry on any food business except under a licence.
(2) Nothing contained in sub-section (1) shall apply to a petty manufacturer who himself manufactures or sells any article of food or a petty retailer, hawker, itinerant vendor or a temporary stall holder or small scale or cottage or such other industries relating to food business or tiny food business operator; but they shall register themselves with such authority and in such manner as may be specified by regulations, without prejudice to the availability of safe and wholesome food for human consumption or affecting the interests of the consumers.
(3) Any person desirous to commence or carry on any food business shall make an application for grant of a licence to the Designated Officer in such manner containing such particulars and fees as may be specified by regulations.
(4) The Designated Officer on receipt of an application under sub-section (3), may either grant the licence or after giving the applicant an opportunity of being heard and for reasons to be recorded in writing, refuse to grant a licence to any applicant, if he is satisfied that it is necessary so to do in the interest of public health and shall make available to the applicant a copy of the order:
Provided that if a licence is not issued within two months from the date of making the application or his application is not rejected, the applicant may start his food business after expiry of the said period and in such a case, the Designated Officer shall not refuse to issue a licence but may, if he considers necessary, issue an improvement notice, under Section 32 and follow procedures in that regard.
(5) Every licence shall be in such form and subject to such conditions as may be specified by regulations.
(6) A single licence may be issued by the Designated Officer for one or more articles of food and also for different establishments or premises in the same area.
(7) If the articles of food are manufactured, stored, sold or exhibited for sale at different premises situated in more than one area, separate applications shall be made and separate licence shall be issued in respect of such premises not falling within the same area.
(8) An appeal against the order of rejection for the grant of licence shall lie to the Commissioner of Food Safety.
(9) A licence unless suspended or cancelled earlier shall be in force for such period as may be specified by regulations:
Provided that if an application for a renewal of licence is made before the expiry of the period of validity of the licence, the licence shall continue to be in force until orders are passed on the application.
(10) The licence shall subsist for the benefit of the deceased’s personal representative or any other member of his family, until the expiry of—
(a) the period of three months beginning with his death; or
(b) such longer period as the Designated Officer may allow.
32. Improvement notices.
32. Improvement notices.—(1) If the Designated Officer has reasonable ground for believing that any food business operator has failed to comply with any regulations to which this section applies, he may, by a notice served on that food business operator (in this Act referred to as an “improvement notice”)—
(a) state the grounds for believing that the food business operator has failed to comply with the regulations;
(b) specify the matters which constitute the food business operator’s failure so to comply;
(c) specify the measures which, in the opinion of the said Authority, the food business operator must take, in order to secure compliance; and
(d) require the food business operator to take those measures, or measures which are at least equivalent to them, within a reasonable period (not being less than fourteen days) as may be specified in the notice.
(2) If the food business operator fails to comply with an improvement notice, his licence may be suspended.
(3) If the food business operator still fails to comply with the improvement notice, the Designated Officer may, after giving the licensee an opportunity to show cause, cancel the licence granted to him:
Provided that the Designated Officer may suspend any licence forthwith in the interest of public health for reasons to be recorded in writing.
(4) Any person who is aggrieved by—
(a) an improvement notice; or
(b) refusal to issue a certificate as to improvement; or
(c) cancellation or suspension or revocation of licence under this Act,
may appeal to the Commissioner of Food Safety whose decision thereon, shall be final.
(5) The period within which such an appeal may be brought shall be—
(a) fifteen days from the date on which notice of the decision was served on the person desiring to appeal; or
(b) in the case of an appeal under sub-section (1), the said period or the period specified in the improvement notice, whichever expires earlier.
Explanation.—For the purpose of this sub-section, the making of the complaint shall be deemed to be the bringing of the appeal.
33. Prohibition orders.
33. Prohibition orders.—(1) If—
(a) any food business operator is convicted of an offence under this Act; and
(b) the court by or before which he is so convicted is satisfied that the health risk exists with respect to that food business,
the court, after giving the food business operator an opportunity of being heard, may by an order, impose the following prohibitions, namely:—
(i) a prohibition on the use of the process or treatment for the purposes of the food business;
(ii) a prohibition on the use of the premises or equipment for the purposes of the food business or any other food business of the same class or description;
(iii) a prohibition on the use of the premises or equipment for the purposes of any food business.
(2) The court may, on being satisfied that it is necessary so to do, by an order, impose a prohibition on the food business operator participating in the management of any food business, or any food business of a class or description specified in the order.
(3) As soon as practicable after the making of an order under sub-section (1) or sub-section (2) (in this Act referred to as a “prohibition order”), the concerned Food Safety Officer shall—
(a) serve a copy of the order on the food business operator; and
(b) in the case of an order under sub-section (1), affix a copy of the order at a conspicuous place on such premises used for the purposes of the food business,
and any person who knowingly contravenes such an order shall be guilty of an offence and be punishable with a fine which may extend to three lakh rupees.
(4) The concerned Food Safety Officer shall with the approval of the Designated Officer issue a certificate to the effect that the food business operator has taken sufficient measures justifying lifting of the prohibition order, within seven days of his being satisfied on an application made by the food business operator for such a certificate or the said officer shall—
(a) determine, as soon as is reasonably practicable and in any event within fourteen days, whether or not he is so satisfied; and
(b) if he determines that he is not so satisfied, give notice to the food business operator of the reasons for that determination.
(5) A prohibition order shall cease to have effect upon the court being satisfied, on an application made by the food business operator not less than six months after the prohibition order has been passed, that the food business operator has taken sufficient measures justifying the lifting of the prohibition order.
(6) The court shall give a direction on an application by the food business operator, if the court thinks it proper so to do having regard to all the circumstances of the case, including in particular, the conduct of the food business operator since the making of the order; but no such application shall be entertained if it is not made—
(a) within six months after the making of the prohibition order; or
(b) within three months after the making by the food business operator of a previous application for such a direction.
Explanation.—For the purpose of this section,—
(i) any reference above shall apply in relation to a manager of a food business as it applies in relation to the food business operator; and any reference to the food business operator of the business, or to the food business operator, shall be construed accordingly;
(ii) “manager”, in relation to a food business, means any person who is entrusted by the food business operator with the day-to-day running of the business, or any part of the business.
34. Emergency prohibition notices and orders.
34. Emergency prohibition notices and orders.—(1) If the Designated Officer is satisfied that the health risk condition exists with respect to any food business, he may, after a notice served on the food business operator (in this Act referred to as an “emergency prohibition notice”), apply to the Commissioner of Food Safety for imposing the prohibition.
(2) If the Commissioner of Food Safety is satisfied, on the application of such an officer, that the health risk condition exists with respect to any food business, he shall, by an order, impose the prohibition.
(3) The Designated Officer shall not apply for an emergency prohibition order unless, at least one day before the date of the application, he has served notice on the food business operator of the business of his intention to apply for the order.
(4) As soon as practicable after the making of an emergency prohibition order, the Designated Officer shall require the Food Safety Officer to—
(a) serve a copy of the order on the food business operator of the business; or
(b) affix a copy of the order at a conspicuous place on such premises used for the purposes of that business;
and any person who knowingly contravenes such an order shall be guilty of an offence and shall be punishable with imprisonment for a term which may extend to two years and with fine which may extend to two lakh rupees.
(5) An emergency prohibition order shall cease to have effect on the issue by the Designated Officer of a certificate to the effect that he is satisfied that the food business operator has taken sufficient measures for justifying the lifting of such order.
(6) The Designated Officer shall issue a certificate under sub-section (5) within seven days of an application by the food business operator for such a certificate and on his being not satisfied, the said officer shall give notice to the food business operator within a period of ten days indicating the reasons for such decision.
35. Notification of food poisoning.
35. Notification of food poisoning.—The Food Authority may, by notification, require registered medical practitioners carrying on their profession in any local area specified in the notification, to report all occurrences of food poisoning coming to their notice to such officer as may be specified.
36. Designated Officer.
36. Designated Officer.—(1) The Commissioner of Food Safety shall, by order, appoint the Designated Officer, who shall not be below the rank of a Sub-Divisional Officer, to be in-charge of food safety administration in such area as may be specified by regulations.
(2) There shall be a Designated Officer for each district.
(3) The functions to be performed by the Designated Officer shall be as follows, namely:—
(a) to issue or cancel licence of food business operators;
(b) to prohibit the sale of any article of food which is in contravention of the provisions of this Act and rules and regulations made thereunder;
(c) to receive report and samples of article of foods from Food Safety Officer under his jurisdiction and get them analysed;
(d) to make recommendations to the Commissioner of Food Safety for sanction to launch prosecutions in case of contraventions punishable with imprisonment;
(e) to sanction or launch prosecutions in cases of contraventions punishable with fine;
(f) to maintain record of all inspections made by Food Safety Officers and action taken by them in performance of their duties;
(g) to get investigated any complaint which may be made in writing in respect of any contravention of the provisions of this Act and the rules and regulations made thereunder;
(h) to investigate any complaint which may be made in writing against the Food Safety Officer; and
(i) to perform such other duties as may be entrusted by the Commissioner of Food Safety.
37. Food Safety Officer.
37. Food Safety Officer.—(1) The Commissioner of Food Safety shall, by notification, appoint such persons as he thinks fit, having the qualifications prescribed by the Central Government, as Food Safety Officers for such local areas as he may assign to them for the purpose of performing functions under this Act and the rules and regulations made thereunder.
(2) The State Government may authorise any officer of the State Government having the qualifications prescribed under sub-section (1) to perform the functions of a Food Safety Officer within a specified jurisdiction.
38. Powers of Food Safety Officer.
38. Powers of Food Safety Officer.—(1) The Food Safety Officer may—
(a) take a sample—
(i) of any food, or any substance, which appears to him to be intended for sale, or to have been sold for human consumption; or
(ii) of any article of food or substance which is found by him on or in any such premises;
which he has reason to believe that it may be required as evidence in proceedings under any of the provisions of this Act or of the regulations or orders made thereunder; or
(b) seize any article of food which appears to the Food Safety Officer to be in contravention of this Act or the regulations made thereunder; and
(c) keep it in the safe custody of the food business operator such article of food after taking a sample;
and in both cases send the same for analysis to a Food Analyst for the local area within which such sample has been taken:
Provided that where the Food Safety Officer keeps such article in the safe custody of the food business operator, he may require the food business operator to execute a bond for a sum of money equal to the value of such article with one or more sureties as the Food Safety Officer deems fit and the food business operator shall execute the bond accordingly.
(2) The Food Safety Officer may enter and inspect any place where the article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food, or exposed or exhibited for sale and where any adulterant is manufactured or kept, and take samples of such articles of food or adulterant for analysis.
(3) Where any sample is taken, 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) Where any article of food seized under clause (b) of sub-section (1) is of a perishable nature and the Food Safety Officer is satisfied that such article of food is so deteriorated that it is unfit for human consumption, the Food Safety Officer may, after giving notice in writing to the food business operator, cause the same to be destroyed.
(5) The Food Safety Officer 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 Safety Officer 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 Safety Officer and a sample of such adulterant submitted for analysis to a Food Analyst:
Provided that no such books of account or other documents shall be seized by the Food Safety Officer except with the previous approval of the authority to which he is subordinate.
(7) Where the Food Safety Officer takes any action under clause (a) of sub-section (1), or sub-section (2) or sub-section (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.
(8) Where any books of account or other documents are seized under sub-section(6), the Food Safety Officer shall, within a period not exceeding thirty days from the date of seizure, return the same to the person from whom they seized after copies thereof or extracts therefrom as certified by that person in such manner as may be prescribed by the Central Government 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 and extracts therefrom as certified by the court have been taken.
(9) When any adulterant is seized under sub-section (6), the burden of proving that such adulterant is not meant for purposes of adulteration shall be on the person from whose possession such adulterant was seized.
(10) The Commissioner of Food Safety may from time to time issue guidelines with regard to exercise of powers of the Food Safety Officer, which shall be binding:
Provided that the powers of such Food Safety Officer may also be revoked for a specified period by the Commissioner of Food Safety.
39. Liability of Food Safety Officer in certain cases.
39. Liability of Food Safety Officer in certain cases.—Any Food Safety Officer exercising powers under this Act or the rules and regulations made thereunder who—
(a) vexatiously and without any reasonable ground 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 liable to a penalty which may extend to one lakh rupees:
Provided that in case any false complaint is made against a Food Safety Officer and it is proved so, the complainant shall be guilty of an offence under this Act and shall be punishable with fine which shall not be less than fifty thousand rupees but may extend to one lakh rupees.
40. Purchaser may have food analysed.
40. Purchaser may have food analysed.—(1) Nothing contained in this Act shall be held to prevent a purchaser of any article of food other than a Food Safety Officer from having such article analysed by the Food Analyst on payment of such fees and receiving from the Food Analyst a report of his analysis within such period as may be specified by regulations:
Provided that such purchaser shall inform the food business operator at the time of purchase of his intention to have such article so analysed:
Provided further that if the report of the Food Analyst shows that the article of food is not in compliance with the Act or the rules or regulations made thereunder, the purchaser shall be entitled to get refund of the fees by him under this section.
(2) In case the Food Analyst finds the sample in contravention of the provisions of this Act and rules and regulations made thereunder, the Food Analyst shall forward the report to the Designated Officer to follow the procedure laid down in Section 42 for prosecution.
41. Power of search, seizure, investigation, prosecution and procedure thereof.
41. Power of search, seizure, investigation, prosecution and procedure thereof.—(1) Notwithstanding anything contained in sub-section (2) of Section 31, the Food Safety Officer may search any place, seize any article of food or adulterant, if there is a reasonable doubt about them being involved in commission of any offence relating to food, and shall thereafter inform the Designated Officer of the actions taken by him in writing:
Provided that no search shall be deemed to be irregular by reason only of the fact that witnesses for the search are not inhabitants of the locality in which the place searched is situated.
(2) Save as in this Act otherwise expressly provided, provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search, seizure, summon, investigation and prosecution, shall apply, as far as may be, to all action taken by the Food Safety Officer under this Act.
42. Procedure for launching prosecution.
42. Procedure for launching prosecution.—(1) The Food Safety Officer shall be responsible for inspection of food business, drawing samples and sending them to Food Analyst for analysis.
(2) The Food Analyst after receiving the sample from the Food Safety Officer shall analyse the sample and send the analysis report mentioning method of sampling and analysis within fourteen days to Designated Officer with a copy to Commissioner of Food Safety.
(3) The Designated Officer after scrutiny of the report of Food Analyst shall decide as to whether the contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send his recommendations within fourteen days to the Commissioner of Food Safety for sanctioning prosecution.
(4) The Commissioner of Food Safety shall, if he so deems fit, decide, within the period prescribed by the Central Government, as per the gravity of offence, whether the matter be referred to,—
(a) a court of ordinary jurisdiction in case of offences punishable with imprisonment for a term up to three years; or
(b) a Special Court in case of offences punishable with imprisonment for a term exceeding three years where such Special Court is established and in case no Special Court is established, such cases shall be tried by a court of ordinary jurisdiction.
(5) The Commissioner of Food Safety shall communicate his decision to the Designated Officer and the concerned Food Safety Officer who shall launch prosecution before courts of ordinary jurisdiction or Special Court, as the case may be; and such communication shall also be sent to the purchaser if the sample was taken under Section 40.
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