LUNG FUNG CHINESE RESTAURANT, LAHORE vs PUNJAB FOOD AUTHORITY Ss — 2021 PLD 684 SUPREME-COURT

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LUNG FUNG CHINESE RESTAURANT, LAHORE VS PUNJAB FOOD AUTHORITY Ss. 4, 7(3) & 9---International key principles integral to the architecture of food laws stated. Citation Name: 2021 PLD 684 SUPREME-COURTBookmark this Case LUNG FUNG CHINESE RESTAURANT, LAHORE VS PUNJAB FOOD AUTHORITY Ss. 7, 13 & Preamble---Constitution of Pakistan, Arts. 18 & 24(1)---Powers of Food Authority and Food Safety Officers---Principles of 'scientific risk analysis' and 'proportionality'---Scope---Punjab Food Authority Act, 2011 ('the 2011 Act') could only be put to an effective use to achieve its goal of food safety and protection of human health if the key principles of scientific knowledge, risk analysis, proportionality and precautionary principle were kept in mind by the Food Safety Officer (FSO) and the Food Authority---Additionally, the FSO must be of the requisite qualification as provided under S.13 of the 2011 Act, he must be abreast with the latest food and health science to be able to make intelligent and smart risk analysis of the risk and danger to food and healthy safety in any given situation---Any drastic step by the Food Authority or its officers that was not based on scientific risk analysis or was not proportionate to the health hazard involved, could cause huge economic and financial loss to the food business by bringing the business of a food operator to a crushing halt, thereby offending the constitutional rights to business and property of a food operator or food business---If the contravention under the 2011 Act could be remedied through a less harsh mechanism provided under the law, taking of a more drastic step should be avoided; this was a balancing act the Food Authority had to undertake to meet the international food law principle of proportionality. Citation Name: 2021 PLD 684 SUPREME-COURTBookmark this Case LUNG FUNG CHINESE RESTAURANT, LAHORE VS PUNJAB FOOD AUTHORITY Ss. 13(1)(c), 18 & 31(2)---Constitution of Pakistan, Arts. 18, 23 & 25---Powers of Food Safety Officer to seal premises under S. 13(1)(c) of the Punjab Food Authority Act, 2011 ('the 2011 Act')---Constitutionality and legality---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, in its present form, was therefore ex facie discriminatory---Power of 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. Citation Name: 2021 PLD 684 SUPREME-COURTBookmark this Case LUNG FUNG CHINESE RESTAURANT, LAHORE VS PUNJAB FOOD AUTHORITY S. 38---Constitution of Pakistan, Art. 10A---Publication of names of convicts in newspapers---Constitutionality and scope---Section 38 of the Punjab Food Authority Act, 2011 ('the 2011 Act') dealt with publication in the newspapers and provided that after the conviction under the 2011 Act had attained finality, the Food Authority with the permission of the Special Court could publish the name of the food operator or food business in the newspapers or in any other mode for information---Section 38 clearly barred the Food Authority and its officers to publicize any proceedings taken against a food business or a food operator under the 2011 Act unless the conviction had attained finality and there was permission granted by the court for its publication----Food Authority and Food Safety Officers (FSOs), therefore, cannot release any information during the pendency of the proceedings under the 2011 Act---Section 38 of the 2011 Act was in line with the requirement of due process and fair trial---Any violation of S.38 would make the FSO or any other officer of the Food Authority liable to departmental action. Citation Name: 2021 PLD 684 SUPREME-COURTBookmark this Case LUNG FUNG CHINESE RESTAURANT, LAHORE VS PUNJAB FOOD AUTHORITY Ss. 7, 13 & Preamble---Powers of Food Authority and Food Safety Officers---'Precautionary principle'---Scope---Precautionary principle [Article 7 of EU Law Regulation (EC) No. 178/2002] referred to specific situations where: (i) there were reasonable grounds for concern that an unacceptable level of risk to health existed and (ii) the available supporting information and data were not sufficiently complete to enable a comprehensive risk assessment to be made---When faced with these specific circumstances, decision makers or risk managers may take measures or other actions based on the precautionary principle, while seeking more complete scientific and other data---Such measures were provisional until the time when more comprehensive information concerning the risk could be gathered and analysed---Precautionary principle had no application where the food items inspected by the Food Safety Officer (FSO) were found to be adulterated, substandard or misbranded, unsafe or suffered from false advertisement or false labelling or were kept under unhygienic and unsanitary conditions---No scientific uncertainty existed about such contravention and could easily be checked on the spot or in a food laboratory---Precautionary principle was to be applied where the health and food safety risk attached to a food item was scientifically uncertain and created doubt of health risk, in such a case, till such time that there was scientific certainty, such a food item could be seized or recalled as the case may be. Citation Name: 2021 PLD 684 SUPREME-COURTBookmark this Case LUNG FUNG CHINESE RESTAURANT, LAHORE VS PUNJAB FOOD AUTHORITY Ss. 13(1)(ca), 16, 18 & 39(1)(d)---Constitution of Pakistan, Art. 10A---Powers of Food Safety Officer (FSO) to impose fines, issue Improvement Notice or issue Emergency Prohibition Orders under the Punjab Food Authority Act, 2011 ('the 2011 Act')---Constitutionality---All said powers enjoyed by the FSO provided a supporting remedial forum for the aggrieved party---Said powers and their corresponding provisions in the 2011 Act not only met the requirement of Art.10A of the Constitution regarding fair trial and due process, but they also gave the FSO the choice to make risk analysis and then adopt a proper risk management strategy by either issuing a Notice of Improvement or imposing a fine or taking a more stern action by seizing the food item which contravened the provisions of the 2011 Act or if the risk to human health was imperative, to issue Emergency Prohibition Order and restrain the food operator from carrying on food business under S. 18 of the 2011 Act---The enforcement interventions by the FSO under the 2011 Act were laid out in a manner that highlighted the concept of proportionality and must be applied in such spirit on case to case basis.

LUNG FUNG CHINESE RESTAURANT, LAHORE vs PUNJAB FOOD AUTHORITY Ss — 2021 PLD 684 SUPREME-COURT

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