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WRIT PETITION (C) NO.159/2012

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 159 OF 2012

SWAMI ACHYUTANAND TIRTH & ORS.                           ….Petitioners

Versus UNION OF INDIA & ORS.                                         …Respondents

WITH

SPECIAL LEAVE PETITION (CRL.) NO. 1379 OF 2011 AND CRIMINAL APPEAL NOS.472, 476-478 AND 479 OF 2012

J U D G M E N T

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 State 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, Union of India

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has also been made a party-respondent. The petitioners allege that

the concerned State Governments and 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.  

2. The petitioners have relied on a report dated 02.01.2011 titled

“Executive Summary on National Survey on Milk Adulteration, 2011”

released by Foods Safety and Standards Authority of India (FSSAI)

which concluded that on a national level, 68.4 per cent 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

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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  Union of  India  and the  concerned State  Governments  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.  

3. In compliance of various orders passed by this Court, all  the

States have filed affidavits stating that ever since 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.

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

FSS Act and penal laws.

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4. We  have  heard  the  learned  counsel  appearing  for  the

petitioners, Union of India and counsel appearing for various States.

5. On  behalf  of  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 the Parliament has enacted Food

Safety  and Standards Act,  2006 and 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.   The Parliament has enacted 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.”

6. 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.

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iv. To ensure availability of safe and wholesome food for human consumption.

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 realize 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 decentralized 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.

7. Exercising  power  under  the  Act,  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

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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

05.08.2011.   In  exercise  of  powers  conferred  by  Clause  (o)  of

Sub-section (2) of Section 92 read with Section 31 of FSS Act, Central

Government  framed  regulations  viz.  Food  Safety  and  Standards

(Licencing and Registration of  Food Businesses)  Regulations 2011.

Under  the  said  Regulation  by  virtue  of  Regulation  2.1,  all  food

business and food operators are required to obtain licence and get

themselves registered as per the provisions of FSS Regulation, 2011.

The definition of the Food Operator, Food business and food are laid

down under Section 3(o), 3(n) and 3(j) respectively of FSS Act, 2006.

Likewise in exercise of powers conferred by Clause (k) of Sub-section

(2) of Section 92 read with Section 23 of FSS Act, Regulations insofar

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as they relate to Food Safety and Standards (Packaging and Labeling)

Regulations, 2011 were made.  

8.  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

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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.

9. 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,

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such  as,  risk  analysis,  risk  assessment,  risk  management,  risk

communication,  transparent  public  consultation,  protection  of

consumers’ interest, etc.  

10. As per Food Safety and Standards (Licensing and Registration

of  Food  Business)  Regulations,  2011,  the  Dairy  establishment  in

which dairy based food is being handled, processed, manufactured,

stored  and  distributed  and  ultimately  sold  by  Food  Business

Operator should conform to the sanitary and hygienic requirements,

food safety measures and other standards as laid down in Part-III of

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 Food

Safety and Standards (Licensing and Registration of Food Business)

Regulations, 2011.    

11. 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

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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 standardized 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 pasteurized 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 flavor,  edible food colours and cane sugar.  Flavoured milk shall  be pasteurized, sterilized 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 standardized 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 pasteurized.  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;

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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  homogenized  product prepared from milk fat, non-fat-milk solids and water.  Recombined milk shall be pasteurized 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 standardized  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 pasteurized 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 standardized 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 pasteurized 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.   

Chapter 2 of the said Regulations deals with Food Product Standards.

As per 2.1.1,  the standards of  different classes and designation of

milk  shall  conform to  both  the  parameters  for  milk  fat  and  milk

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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  Business)  Regulations,  2011  prescribes

specific hygienic and basic sanitary measures to be followed by the

Food Business Operators.  

12. Sections  50  to  65  of  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, State of

Uttar Pradesh has amended Section 272 of the Indian Penal Code by

enhancing  the  sentence  to  imprisonment  for  life  and  also  fine.

Similar amendment has been made by the States of West Bengal and

Orissa. State of Madhya Pradesh in its counter affidavit has stated

that it has also decided to amend Section 272 of 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

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vide its orders dated 05.12.2013 and 30.01.2014 has directed similar

amendments be made in other States as well.   Vide its order dated

10.12.2014,  this  Court  directed  Union  of  India  to  come  up  with

necessary amendments in Food Safety and Standards Act, 2006 and

also in the Indian Penal Code to make penal provisions at par with

State Amendments.

13. In its  counter affidavit  filed on 19.02.2014 FSSAI has stated

that  the  High  Court  of  Judicature  at  Allahabad  in  Writ  Petition

No.8254 of 2010 vide judgment dated 08.09.2010 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 Food Safety and Standards Act, 2006.  In the said case by an

order dated 11.05.2010 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 Section 272/273 IPC in

case of adulteration of any article or drink. High Court of Allahabad,

vide  its  judgment  dated  08.09.2010  has  quashed  the  said

Government order against which State of Uttar Pradesh has preferred

appeals before this Court in Criminal Appeals No.476-478 of 2012

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which, as indicated hereunder, are ordered to be delinked.  As the

question of invoking Sections 272/273 IPC for violation under 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 Food Safety and Standards Act, 2006 alongwith 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.

14. 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 the 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.

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The samples were collected randomly and analysed from 33 States.

The  samples  were  sent  to  various  Govt.  laboratories  namely,

Department of  Food and Drug testing, Government of  Puducherry,

Central Food Laboratory, Pune, Food Research and Standardization

Laboratory,  Ghaziabad,  State  Public  Health Labaoratory,  Guwahati

and Central  Food Laboratory,  Kolkata  for  analysis.   The  following

parameters  were  analysed such as  Fat  (%),  SNF (%),  Neutralizers,

Acidity,  Hydrogen  Peroxide,  Sugar,  Starch,  Glucose,  Urea,  Salt,

Detergent, Skimmed milk powder, and Vegetable fat to ascertain the

presence of adulterant.  

15. 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:

02.01.2012, 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 neutralizers respectively.   Detergent was also found in 103 samples

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(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%), Uttrakhand (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.”

16. 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.

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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.

17. To safeguard infants/children and general public from dangers

of adulteration of milk, FSSAI mandates an upper limit for certain

micro  organisms  in  pasteurized  milk,  these  norms  are  necessary

because it is stated that even milk from healthy cows and buffalos is

vulnerable to bacterial contamination once it is stored for sometime

at  normal  temperature.   It  is  stated  that  besides  minor  skin

infections, some bacteria can cause life endangering diseases such as

pneumonia and diarrhea.  

18. In the interim order dated 05.12.2013, 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 30.01.2014,  this Court

directed Union of India and the States to file affidavits indicating the

steps taken for curbing the adulteration of milk and indicating the

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number  of  cases  identified  where  milk  was  adulterated  with

hazardous chemicals  and details  of  prosecution launched and the

result thereof.  In compliance of those orders, all the States have filed

their  responses  indicating  the  inspection  done,  number  of

prosecutions launched and status of those cases.

19. Considering the seriousness of the offence and referring to the

amendment  to  Section  272  Indian  Penal  Code  made  by  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 05.12.2013, 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

30.01.2014 and this Court also directed Union of India to consider

bringing in suitable amendments to FSS Act. On 13.03.2014, counsel

appearing for the Union of India produced a letter dated 12.03.2014

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

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11.11.2014,  this  Court  observed  that  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.  When the matter came up for hearing on 10.12.2014,

Union of India submitted that the bill seeking to amend FSS Act by

inserting  a  new  section  ‘Section  7A’  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 at par with the provisions contained in the Indian Penal Code and the States Amendments made therein.”

20. 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

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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 at par

with the provisions contained in the State amendments as indicated

above.

21. As observed by this Court in the orders dated 05.12.2013 and

10.12.2014, it will be in order, if the Union of India considers making

suitable  amendments  in  the  penal  provisions  at  par  with  the

provisions contained in the State amendments to the Indian Penal

Code.  It is also desirable that 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.  

22. 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:-

i. Union  of  India  and  the  State  Governments  shall  take appropriate steps to implement Food Safety and Standards Act, 2006 in a more effective manner.

ii. 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

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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.

iii. 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.  

iv. 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. State  Government  to  ensure  that  State  food  testing laboratories/district  food  laboratories  are  well-equipped  with the technical persons and testing facilities.

v. 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.  

vi. Since  the  snap  short  survey  conducted  in  2011  revealed adulteration  of  milk  by  hazardous  substances  including chemicals,  such  snap  short  surveys  to  be  conducted periodically both in the State as well as at the national level by FSSAI.

vii. 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 concerned District Collector 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.

viii. To  prevent  adulteration  of  milk,  the  concerned  State Department  shall  set  up  a  website  thereby  specifying  the functioning and responsibilities of 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

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States should also have and maintain toll free telephonic and online complaint mechanism.  

ix. In order to increase consumer awareness about 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.)  

x. Union  of  India/State  Governments  to  evolve  a  complaint mechanism  for  checking  corruption  and  other  unethical practices of the Food Authorities and their officers.

23. The Special Leave Petition (Crl.) No. 1379/2011, Criminal

Appeals No.472/2012, 476-478/2012 and 479/2012 are ordered to

be de-tagged.

…....……………………..CJI.            (T.S. THAKUR)   

….... ………………………..J.

      (R. BANUMATHI)

…....………………………..J.        (UDAY UMESH LALIT)

New Delhi; August 5, 2016

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