IMPORTANT POINT
The court emphasized the necessity of strict enforcement of food safety regulations while denying compensation under Constitutional Tort due to insufficient evidence of regulatory failure.

JUDGMENT :

Devan Ramachandran, J.

The Memorandum of this Writ Petition begins with the famous quotation of the Father of our Nation – Mahatma Gandhiji, that “there are people in the world so hungry, that God cannot appear to them except in the form of bread”.

2. This Court is fully aware why the petitioner began her pleadings in such manner because, she is the hapless mother of a 16 year old girl, who succumbed to food poisoning, after having consumed a proprietary food article by name “Shawarma”, allegedly sold by respondents 7 and 8.

3. It is horrifically tragic that what Mahatmaji saw as God, should rob a life.

4. The petitioner – mother alleges that it is the insouciant regulatory regime – having failed to conduct necessary inspections and evaluations in time, which is the primary cause for the horrible accident; and thus seeks compensation, under the principles of Constitutional Tort, to a sum of Rs,1,00,000/-. In addition, she also pleads that respondents 1 to 6 be directed to ensure strict and systematic enforcement of the provisions of the Food Safety and Standards Act, 2006 (‘Act’ for short); and Regulations, 2011 (‘Regulations’ for short), including by conducting periodical and recurring inspections and supervisions on the food business ensuring stringent penal action against preparators, in the interest of justice”(sic).

5. That can be no ways about the indescribable pathos of a mother who has lost her young daughter, and that too on account of food poisoning. The apprehension of the society at large is also kindled because, the love of the younger generation for the food article in question is well-known; and therefore, something that can be taken judicial note of.

6. In fact, after hearing the parties earlier on 14.11.2023, this Court issued a very detailed order, specifying the protocol to be strictly enforced and adopted for the sale of the food in question; and to avoid repetition and prolixity, I extract the same as under:

The petitioner has lost her child of a mere 16 years, all because she chose to relish a dish which she enjoyed – ‘Shawarma’.

2. There are allegations made by the petitioner, which this Court takes very seriously, including that the food manufacturer in question was operating without licence; and that there were no inspections conducted on them, for at least two years by the competent Authorities.

3. This Court is aware that the petitioner has sought compensation under the constitutional Tort Principles, which, obviously, the State will have to answer through appropriate counter pleadings, adverting to the materials on record, particularly Ext.P6 and the Medical Records of the child.

4. However, as matters now stand, the endeavour of this Court is to ensure that such incidents never happen in future. There is a particular reason why I am saying this because, though this Court is aware that there was an Order of Ban issued by the Food Safety Commissioner on 12.01.2023, disallowing the use of raw eggs in the production and storage of mayonnaise, it is brought to my notice through the Press and by the counsel appearing, that there was an incident of death by suspected consumption of ‘Shawarma’ in the recent past.

5. Smt.Afsana Parveen, IAS - Food Safety Commissioner, was present in person online today as per the earlier orders of this Court. She gave a very detailed explication of the steps taken by her Department, though she confessed that she had joined the post only in the last two weeks. She mentioned that there are ‘Shawarma Guidelines’ issued on 25.09.2022, as also the aforementioned ‘Order of Ban’ dated 12.01.2023; and added that there are enforcement drives and inspections being conducted on regular basis, in which several eateries have been issued notices.

6. Smt.Afsana Parveen, however, pointed out that, in the case of ‘Shawarma’, one major cause of accident was that it was being consumed by customers much after the time frame it was safe for consumption. She submitted that, therefore, there are al