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Monday, August 8, 2016

Milk Adulteration,-the menace of growing sales of adulterated and synthetic milk in different parts of the country.= 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 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 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.

                                                                  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 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  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.
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.

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:-
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  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 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  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, 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 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;

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  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  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 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.

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 (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.
 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 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 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  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 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  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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