2023 PLP 1055 (CLC)

SARDAR MUHAMMAD SARFRAZ DOGAR, J.

Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the legality and constitutionality of proceedings dated 05.11.2020 made by respondent No.3 and also seeks superdari of 410-whey powder bags, which was taken into possession under section 13(3) of the Punjab Food Authority Act, 2011 amended 2016 ("Act").

2. Heard. Record perused.

3. Brief facts giving rise to this writ petition are that on 05.11.2020, the respondent No.3 inspected the Fat Rendering Unit and Dairy Farm, which was in one boundary wall and after observing certain issues, sealed the same and seized 410 Bags of Whey Powder and took to the office of Punjab Food Authority, Okara.

4. Main thrust of learned counsel for the petitioner is that the seized whey powder was being fed to the cattle and was not meant in any sense to be the food for consumption of human beings. Record shows that this has been the stance of petitioner from day one that the said Whey Protein Powder is feed of the animals. In the report dated 14.11.2020 which was submitted before the learned Senior Civil Judge (Criminal Division), Okara by the Food Safety Officer Punjab Food Authority, Okara it has been mentioned that approximately 610 Bags of Whey Powder were found and the representatives of the dairy farm failed to justify the presence of said bags within the dairy farm and could not provide traceability in respect of sale or purchase of the said bags or any other document on the spot. If, for the sake of arguments, it is believed that the petitioner's representatives could not provide any receipt or prescription or documentary proof in respect of presence of 610 Bags of Whey Powder, even then the seizure of 410 Bags out of said 610 Bags remained under suspicion and unjustified. Though, it has been claimed that there was tempering of dates of some powder bags and that the whey powder was "adulterated" however, the same remained uncorroborated firstly no sample was sent to laboratory for its analysis secondly, there was no denial on the part of the Food Safety Officer as to when the same is being fed to the animals then how the same became adulterated and harmful for human beings? Furthermore, if said Whey Powder could be used for synthetic milk, then why not the Food Safety Officer sealed rest of the 200 Bags along with premises and only seized 410 Bags? Apart from above unanswered queries, there is no provision in the Act, which enables the Food Safety Officer to seize the "Animal Food".

5. Coming to the legality of the proceedings conducted by the Food Safety Officer, in respect of sealing the dairy farm and Fat Rendering Unit. Record shows that the premises were sealed on 05.11.2020 under section 13(1) (c) of the Act and the same was de-sealed through improvement notice under section 16 of the Act, on 18.11.2020. In a matter of alike nature, the august Supreme Court of Pakistan in a case titled "Messrs Lung Fung Chinese Restaurant, Lahore and others v. Punjab Food Authority and others" (PLD 2021 Supreme Court 684) while evaluating the powers of Food Safety Officer in respect of his sealing and de-sealing the premises held that "Power of sealing in the hands of the Food Safety Officer (FSO) could easily be applied arbitrarily which could not be permitted under the constitutional scheme, as any such act would offend fundamental rights under Arts.18, 23 & 25 of the Constitution

power of sealing of premises by the FSO to "seal any premises" in S.13(1) (c) of the 2011 Act was declared to be unconstitutional and illegal, and it was further declared that any Rules, Regulations or SOPs promulgated under the 2011 Act dealing with "sealing of the premises" by the FSO in the absence of any sealing power under the Act were, ultra vires the 2011 Act and also illegal and without any legal effect." (Emphasis added)

6. It has been further held in the above noted esteemed judgment of august Supreme Court of Pakistan that the Punjab Food Authority Act, 2011 ('the 2011 Act') did not lay down any parameters or guidelines as to when the power of "sealing of premises" could be invoked by the Food Safety Officer (FSO) under section 13(1)(c) of the 2011 Act. No ground or any other legislative guideline had been given in section 13 (1)(c) that permitted or empowered the FSO to exercise his discretion and invoke the power of sealing. Section 13(1)(c) simply stated that FSO could seal any premises where he believes any food is prepared, preserved, packaged, stored, conveyed, distributed or sold, examined any such food and examined anything that he believes that was used, or capable of being used for such preparation, preservation, packaging, storing, conveying, distribution or sale. Nowhere did section 13(1)(c) provide when the sealing power could be invoked. Further, the act of "sealing" is not supported by a remedial mechanism as in the case of seizure of food. Therefore, there is no legal remedy available to a food operator or food business after the premises have been sealed. There is also no provision for de-sealing under the Act. More importantly, a similar power has been actually vested in the FSO under section 18 of the Act for passing emergency prohibition orders whereby a food operator can be restrained from carrying on food business. The difference is that within twenty-four hours the aggrieved party can approach the Food Authority for its redressal against such order (Section 18(2)). The so-called sealing power under section 13(1)(c) amounts to frustrating section 18 and the scheme of the Act. In the absence of any legislative policy or guideline clearly spelling out when the sealing can take place and there being no remedial process provided against sealing, the power of sealing in the hands of the FSO can easily be applied arbitrarily which cannot be permitted under our constitutional scheme, as any such act would offend fundamental rights under Articles 18, 23 and 25 of the Constitution. The power of sealing of premises by the FSO, in its present form, is, therefore, ex facie discriminatory. The august Supreme Court of Pakistan, therefore, declared that the power of the FSO to "seal any premises" in section 13(1)(c) to be unconstitutional and illegal and the power to seal the premises of a food operator or a food business by the FSO was struck down and reference to "sealing" in section 31(2) was also struck down whereas the rest of the provision [section 13(1)(c)] shall remain intact and continue to be enforceable. The august Supreme Court of Pakistan further held that any Rules, Regulations or SOPs promulgated under the Act dealing with "sealing of the premises" by the FSO in the absence of any sealing power under the Act were declared to be ultra vires the Act and illegal and without any legal effect.

7. Therefore, keeping in view the above, instant petition is accepted. Consequently, the proceedings dated 05.11.2020 made by respondent No.3 are declared to be ultra vires, illegal and without any legal effect and same are set aside. The respondent No.3 is directed to hand over the seized 410-Bags of Whey Powder being animal feed, to the petitioner. MQ/W-2/L Petition accepted.