Module-6: Statute Review
Title: Review of the Nirapad Khadya Ain, 2013
Aesha Siddika
Assistant Judge, Jhenaidha
Roll: 39
&
Ibrahim Sarkar
Assistant Judge, Chandpur
Roll: 40
Introduction and Objectives of this Act:
• Despite provisions relating to adulteration of the food in penal
code and The Pure Food Ordinance, 1979, the Act titled
Nirapad Khadya Ain, 2013 has been enacted on 10th October,
to provide more safety to the edible products. The core
objective of this Act is to create a harmony in food production,
import, processing, storing, supply, marketing and sale for
ensuring right to pure food through proper utilizing of
scientific method and for that end to establish an efficient and
effective authoritative body to oversee the whole of the
system of food safety management. In recent times availing of
the quality food has become a challenge for us. To meet the
challenge the Legislature has passed this Act with a noble view
to ensure secured food.
Background of this Act:
• We inherited Pure Food Ordinance, 1959 from Pakistan
Regime. But that Ordinance was not able to serve the purpose
for which it was enacted due to its inchoate arena. With the
huge development in communication and business sector and
in the passage of time and with the growth of population, our
food habit has taken its new shape. Unscrupulous profiteers
were supplying foods at the cost of our health, our lives and
impliedly in exchange of the fate of our next generation. The
loopholes of our previous Ordinance were creating recourse
for the food perpetrators. A new legal framework was much
felt to be created. At length, Nirapad Khadya Ain, 2013 came
into being to try to protect our health and above all our life.
The Act in glimpse:
• The definition clause of this Act is very much inclusive.
It provides an exhaustive definition of food and
adulterated food, genetically modified food as well. This
Act has created a binding effect on the Government to
establish Bangladesh Nirapad Khadya Kartipaksha. The
duties and activities of this Authority have been
enunciated in this special statute. This Authority
assumes to serve the purpose of this legislation through
controlling and examining the whole of the food
manufacturing system and reconciling the activities of
all the organizations concerned
• One of the main activities of the Nirapad Khadya Kartipaksha
is to convey to the Government and the people the risk about
the malnutrition and unhealthy elements of a particular food
item so that the consumers can get a message about a
particular food item. This Act has introduced us with the very
progressive term genetically modified food, false
advertisement, radio-active food. In this enactment there are
13 chapters, 90 sections and one schedule. The Act has
provided establishment of following institutions-
• Jatiya Nirapad Khadya Byabashthapana Upadeshta Parishad
• Bangladesh Nirapad Khadya Kartipaksha (Food Safety
Authority)
• Central Food Safety Management Adjustment Committee.
• Food court.
Salient features of the Act:
Section 23-42 creates obligations of the food manufacturers and
dealers. On the other hand those provisions obviously create rights of
the consumers. The following acts have been declared by this Act
illegal and contraband-
The use of poisonous materials in food.
Use of excessive radio-active or heavy materials.
The manufacture, import and distribution of adulterated food or articles
thereof.
Production of substandard food.
Excessive use of supplementary articles.
Keeping of industrial wastages in the food establishment.
Import, processing, preservation and distribution of the expired food.
• Use of pesticides for the abnormal growth of food articles.
• Genetically modified food.
• Non-labeling of food.
• Production and sale of non-hygienic food.
• Sale of decomposed food.
• Substandard service in hotels and restaurants.
• Preparation of food by persons having infectious or chronic
diseases.
• Manufacture of contraband food.
• Production of food by unregistered companies.
• Publishing false advertisement and wrong information as to
food.
Responsibility to withdraw food:
• Section 43 and 44 says that the company has
to withdraw the infected or dirty food from
the market with own arrangement.
Examination and Analysis of Food:
• the government is oboligated by this
enactment to have monitoring of the edible
food by appointing food analysts. Section 45
to 50 provides for appointment of one or more
Analyst of Food and the appointment shall be
made by Nirapad Khadya Kartipaksha.
Food inspector and their duties:
• Section 51 to 57 has described about the appointment
and duties of Food inspector. There shall be Inspectors
of Food as may be necessary to be appointed by the
Kartipaksha. The Inspector shall act as per direction of
the Food Court. The Inspector shall have power to seize
the adulterated foods if found anywhere in Bangladesh.
Apart from those duties, the Inspector of Food shall
perform the responsibilities and duties as inserted in the
Act. The Inspector of Food shall have power to
immediately remove adulterated food, radio-active
substance, container or its elements.
• Section 58 is a penal provision. This section
must be read with the schedule as inserted in
this Act. This section provides for second time
punishment if the previous offence is repeated.
It is worth mentionable that the second- time
punishment is graver than that of the first time.
The offences committed and triable under this
Act are mostly cognizable and non-billable.
The offences under sections 32 and 36 are
non-cognizable and billable.
• Section 61 is an enabling section by which the
Pure Food Court may try those offences which
are punishable with graver punishment under
any Special law. By this section the Pure Food
Court assumes a power to try the offence of
graver punishment..
Procedural Mechanism:
• Section 64-75 has discussed about the
establishment of Pure food Court and procedure
of filing complaint and Trial Procedure.
• This Act has two types of procedural mechanisms.
They may be described as Authority oriented
procedure and Court oriented procedure. The
Food Safety Authority ( Nirapad Khadya
Karipaksha) has some important functions to
adjust and reconcile the activities of different
food-related organs.
• Section 64 states, “ Notwithstanding anything contained
in the Code of Criminal Procedure, the Government may
in consultation with Supreme Court by notification in the
Official Gazette, empower the 1st class Magistrate or in
the case of Metropolitan area, Metropolitan Magistrate
to act as a Pure Food Court under the Act.”
• According to section 65 the procedure for holding trial
under the Act shall be of summary nature under chapter
XXII of the Code of Criminal Procedure, 1898, so far as
may be applicable. The phrase, ‘so far as may be
applicable’ implies that the Pure Food Court may apply
the procedural mechanisms enunciated in Chapter XX of
the CrPC.
• Section 66 prescribes the procedure for filing
written complaint to the Chairman of National
Food Safety Authority (Jatiya Nirapad Khadya
Kartipaksha), or to the Inspector of Food and
the same may be filed by any food purchaser,
consumer, receiver or user of food. Thereafter
the Chairman or the Inspector appointed by
the Chairman after conducting investigation, if
found prima facie case shall file case in the
Pure Food Court.
• Even any person may file a case in the Pure Food
Court within 30 days of arising of cause of action. So,
the Act bestowed wide power to the people to file a
case against the food perpetrators. The Inspector of
Food shall be the investigating authority empowered
in this behalf by the Chairman of the Food Safety
Authority and he shall investigate all the complaints
made under the Act. The Investigating officer while
conducting investigation shall apply the power and
procedure as exercised by the Officer-in-Charge of a
police station under the Code of Criminal Procedure,
1898 (Section 67).
Timeframe of Investigation:
• Section 68 prescribes the limit within which the Inspector
shall complete his investigation. From the date of the order of
investigation passed by the Pure Food Court, the investigating
officer shall complete the investigation within 90 working
days. If the investigation could not be completed within the
prescribed time limit due to reasonable cause, after recording
the reason therefore, the investigator shall complete the
investigation within 30 working days. If the investigation
cannot be completed within the 30 days, the concerned court
is to be informed of the fact along with the cause thereof. The
court shall appoint another investigator to investigate the
case.
• The Pure Food Court after reading out the
complaint carefully, or on its own motion, if
satisfied that there may be a commission of an
offence under the Act, the court may issue
search warrant or warrant of arrest to arrest the
offender or search the place where any
incriminating documents may be found .Section
72 has introduced a new thing and that is the
photographs taken by camera, audio and video
have evidentiary value in the trial procedure
under the Act, which go odd with our Evidence
Act, 1872.
Appeal:
• Section 74 states that if any person is aggrieved by the judgment or
order passed by the Pure Food Court, he can prefer an appeal to the
Session Judge’s Court within thirty days of the judgment or order. There
is civil provision also in section 76 and 77. The aggrieved person or
consumer may file a suit for compensation against a person who has
already been convicted under this Act. And this civil remedy can be
invoked under section 76. The distressed person can prefer an appeal to
the District Judge Court against the judgment or decree passed by the
trial court within 90 days of the decree or order. The provisions of Civil
Procedure Code, 1908 and Civil Courts Act, 1887 which are inconsistent
to the Nirapad Khadya Ain are irrespective in this regard.
• By inserting section 90 in the Nirapad Khadya Ain, the Pure Food
Ordinance, 1959 has been repealed and the validity of actions already
taken under the Ordinance has been given.
Analysis of the Act:
• The Pure Food Ordinance was not serving the purpose
for which it had been enacted. The provisions of this
Ordinance have become obsolete and inoperative in
consequence of which the re-enactment of a new Act
was highly felt and at last in 2013, the Nirapad Khadya
Ain has been enacted.
• 1. Criminal and civil remedy: The Act provides
punishment as well as civil remedy. Any person proved
to be convicted may face a suit for compensation. So,
the punishment alone cannot leave him free from civil
liability.
• 2. Self-containment: The Act is not self-contained. In
some cases the procedural mechanisms enshrined in
CrPC, 1898 and enforcement mechanisms inserted in
Mobile Court Ain have to be followed to meet the
purpose of the Nirapad Khadya Ain.
• 3. Summary trial: Section 65 provides that the court
shall follow the provision of summary trial of CrPC.
• 4. Mobile Court’s Jurisdiction: Section 75 gives the
Mobile Court the jurisdiction to try the offences, so
far as applicable, committed under the Nirapad
Khadya Ain although the Pure Food Court is the
creature of this Ain.
• 5. Investigation: The police officer is not given any
power to investigate the offence committed under
this Act although the Food Inspector can seek
assistance from the law enforcing agencies or any
other agency.
• 6. A very new concept has been added through
Section 62 and that is for the interest and
incentive of the consumers only. Any aggrieved
consumer, who will file a petition of complaint
regarding adulteration of food or counterfeiting
food although not adulterated, shall get 25% of the
fine if imposed by convicting the accused person.
Criticisms of the Act:
• We have drawn some criticisms from this Act.
• The soft drinks have not been included within the
ambit of this enactment.
• The Act should be adapted to the changing time to
properly deal with the varied offences.
• The punishment for the adulteration of food should
be made more stringent.
• Section 57 says that magistrate can order to destroy
any food without any chemical or any other test, on
the basis of his personnel satisfaction.
Recommendations:
• No order to destroy any food can be ordered
by the magistrate without having recourse to
chemical test under section 57 of the Act.
• The soft drinks should be brought within the
ambit of this enactment.
Conclusion:
• We want to believe that our Legislature will
remove the incapability of this progressive Act
within a short time.
•
Thank You
