Right To Get Unadulterated Food Is A Fundamental Right; Duty Of Govt. To See Only Unadulterated Food Items Are Available In Market: Kerala HC
The Kerala High Court observed that the right to get unadulterated food is a fundamental right of every citizen and the State and the Union must see that only unadulterated food items are available in the market.
The Court observed thus while quashing criminal proceedings against PepsiCo India Holdings Pvt. Ltd. (petitioner) in connection with a food safety case that alleged the sale of "unsafe and misbranded" food products under the Food Safety and Standards Act, 2006 (FSS Act) in the analysis of "Mint & Lemon Flavoured Green Ice Tea."
A Single Bench of Justice P.V. Kunhikrishnan observed, “It is the duty of the state and the union to see that, only unadulterated food items are available in the market. A person who sells adulterated food should face the consequences and such persons should not escape from the clutches of law on technical grounds. A foolproof Act and Rules are the need of the hour. Right to get unadulterated food is part of the fundamental right of every citizen.”
Advocate Rajesh Batra appeared for the petitioner, while ADGP Grashious Kuriakose represented the respondents.
The Food Safety Officer (respondent) inspected a market during which four sealed bottles of the petitioner’s product were sampled for analysis. According to the initial report from the Food Analyst, the sample contained sodium saccharin at a concentration which was considered unsafe under Section 3(1)(zz)(v) of the FSS Act.
Following this, the petitioner appealed the Food Analyst’s findings under Section 46(4) of the FSS Act, leading to a secondary analysis by the Referral Food Laboratory (lab). As per the certificate of analysis by the lab, the sample tested contained 'Caffeine' which was not declared on the label and thus, violated Regulation No. 2.4.5(38) of FSS (P&L) Regulations and hence, the sample was unsafe and misbranded under Section 3(1)(zz)(v) and 3(1)(2f)(B(ii) & c(i) respectively of the FSS Act.
Therefore, the two reports were divergent. The High Court had to ascertain if the sample was sent to the Referral Food Laboratory at the instance of the petitioner and if the opinions of the Food Analyst and the Referral Food Laboratory were divergent, whether the prosecution could be initiated against the petitioner.
The Court noted, “It is clear that the appeal is filed against the report of the Food Analyst and Form VIII of the FSS Rules also shows that the appeal is against the report from the Food Analyst. If the report of the Referral Laboratory is divergent from the report of the Food Analyst, there is no right of further appeal to the accused.”
Rule 2.4.6 of the FSS Rules specifies that the referral laboratory's report is "final," but the Court noted that this finality did not equate to "superseding" the initial findings. This distinction, the Court remarked, presents a lacuna in the law.
Consequently, the Court observed, “In this case, admittedly an appeal is filed against the report of the Food Analyst in terms of subsection (4) of section 46 of the FSS Act. It is also an admitted fact that the report of the referral laboratory is divergent from the report of the Food Analyst. If that be the case, in the light of Rule 3.1.1 of the FSS Rules, the prosecution against the petitioner is unsustainable, because the referral laboratory is not confirming the report of the Food Analyst, and instead of confirming, a divergent opinion is given by it.”
Accordingly, the High Court allowed the petition.
Cause Title: Pepsico India Holdings Pvt. Ltd v. State of Kerala & Anr. (Neutral Citation: 2024:KER:67629)
Appearance:
Petitioner: Advocates Rajesh Batra, M. Gopikrishnan Nambiar, P. Benny Thomas, K. John Mathai, Joson Manavalan, Kuryan Thomas and Sandeep Gopalakrishnan
Respondents: ADGP Grashious Kuriakose
