These batch of writ petitions are filed by hotel/restaurant operators in the State feeling aggrieved by the action taken under the Food Safety and Standards Act, 2006 (for short, the "FSS Act”) commanding composition of the offence based on the demand made by the authorities.
2. In all these writ petitions, the challenge is in regard to demand notices, at different rates, directing the petitioners to pay the amount demanded. These notices, admittedly have been issued by the officers concerned invoking Sections 58 and 69 of the FSS Act.
3. In all these cases, on inspection by the officers, the hotels and restaurants run by the petitioners were found in unhygienic condition. On finding such defects, notices were issued to these hotels and restaurants to cure the defects and to compound the offence on payment of compounding fee.
4. The petitioners challenge these notices, questioning the legality of the notices, demanding compounding. It is the case of the petitioners that compounding notice cannot be issued in terms of Section 58 of the FSS Act or as the case may be under Section 69 of the FSS Act without adjudicating culpability of the petitioners and giving an opportunity to the petitioners to contest the matter. It is further submitted that all the petitioners are having licence to do food business, and without sending improvement notice under Section 32 of the FSS Act, the notices are issued.
5. The FSS Act was enacted laying down the standards for articles for food and also to ensure safe food for human consumption. Under Section 31 of the FSS Act, no person shall commence or carry on any food business except under a licence. By virtue of the power referable under Section 92 of the FSS Act, a regulation called the Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011 was made. Regulation 2.1.2 also mandates licence for food business. Regulation 1.2.4 defines “Petty Food Manufacturer” as food manufacturer, who manufactures or sells any article of food himself or a petty retailer, hawker, itinerant vendor or temporary stall holder; or distributes foods including in any religious or social gathering except caterers. Many of the petitioners are coming under the term “petty food manufacturer”.
6. Section 32 of the FSS Act empowers Designated Officers appointed under the Act to serve improvement notice on the food business operator stating the grounds for believing that the food business operator has failed to comply with the regulations and require the food business operator to take measures to improve within time indicated in the notice. If the food business operator fails to comply with the improvement notice, the Designated Officer has power to cancel such licence of the food business operator. Section 58 of the FSS Act provides for penalty for contraventions for which no penalty is provided under the FSS Act to the maximum of Rs.1 lakh. Section 59 also provides for punishment for unsafe food. Under Section 69, the Commissioner of Food Safety may, by order, empower the Designated Officer to accept from petty manufacturers to compound the offence in contravention of the FSS Act and the same shall not exceed Rs.1 lakh.
7. The case of the petitioners is that having accepted that the petitioners are petty manufactures in terms of Section 69 of the FSS Act, without serving any notice in terms of Section 32 of FSS Act for improvement and without any request made by the petitioners, the direction to compound the offence is illegal.
8. The Government is taking measures, in public interest, to secure health of public. These steps are being taken in different stages which includes creating awareness to avoid health hazard. However, the Government cannot bypass the statutory provisions while demanding compounding fee from the petitioners. The compounding under Section 69 of the FSS Act would arise when a request is made by the offender for composition of the offence. Composition of law is understood as the willingness of the offender to accept culpability of the offence and to seek discharge in respect of the offence, on payment of a sum of money accepted or agreed to be accepted as composition. Black Laws Dictionary defines “Compound” as follows:
“To Compromise; to effect a composition with a creditor; to obtain discharge from a debt by the payment of a smaller sum. ”
9. Therefore, composition of the offence cannot be made unilateraly by the authorities. The composition is different from imposing penalty. The present demand is made as though penalty is imposed on the petitioners. If the petitioners are not willing to compound the offence, necessarily, the matter has to be adjudicated in terms of Section 68 of Chapter X of the FSS Act. I am also of the view that the improvement notice has also to be issued against each petty manufacturers. If the petitioners are willing to compound the matter, it can be compounded under Section 69 of the FSS Act. However, the petitioners cannot be forced to compound the offences. Section 32 of the FSS Act clothes sufficient power on the Designated Officer to cancel the licence on failure to comply with the improvement notice.
10. Under Section 42(2) of the FSS Act, the Food Analyst on receipt of the sample from the Food Safety Officer, after proper analysis has to send the analysis report to the Designated Officer with a copy to the Commissioner of Food Safety. Section 41 of the FSS Act refers to search, seizure, etc. and informing the Designated Officer. It is only after complying those procedures, the adjudicating officer or the court as the case may be, can impose penalty or punishment on offenders. Compounding of offence appears to have been done to bypass these procedures.
11. In view of the above, these writ petitions are allowed quashing the orders to the extent of demanding Compounding fee. It is open for the authorities to proceed against the petitioners in accordance with law in the manner indicated as above. No costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms