‘Go systematically’: Why Bombay HC praised FDA crackdown but has pulled up its methods

The Bombay High Court has commended the Maharashtra Food and Drug Administration's (FDA) crackdown on food and drug safety violations but expressed concerns over the manner in which it has been implemented. The court has criticized both disproportionate action and the overuse of regulatory powers in several cases heard between June and July.

In at least nine instances, benches in Mumbai, Nagpur, and Aurangabad intervened, either staying or reversing licence suspensions, stating that immediate closure was not warranted in the absence of a genuine public health emergency or when subsequent inspections revealed rectified deficiencies.

The court's strongest rebuke came on August 17 when Acting Chief Justice Ravindra V Ghuge's bench cautioned the FDA for delaying the restoration of Gurunanak Dairy and Sweets' licence in Pune, despite a subsequent reinspection showing 98% compliance. Ghuge labeled the FDA's actions as "overboard," "perversity" and "strange policies," questioning the manner in which the regulator cornered the business and the unfairness of proceeding with an appeal once the compliance had been demonstrated.

The court's scrutiny extended beyond restaurants and food outlets. On August 7, while hearing Amazon Retail India's challenge against action against its Bhiwandi warehouse, the bench questioned whether the FDA's goal to shut commercial establishments across several cities was proportionate. The FDA had targeted Amazon for allegations that expired and damaged food was being diverted into the retail market instead of being destroyed scientifically.

The court acknowledged the FDA's intentions but cautioned against excessive enforcement, stating that the regulatory body was "trying to kill a mosquito with a sword." Additionally, the court clarified that the FDA cannot cancel a food licence while an appeal against its suspension is pending before the competent authority. The court also questioned the FDA's approach while hearing Cadila Pharmaceuticals Ltd's challenge to action stopping the sale of certain medicines, expressing concern over the "judicious use of power" by the regulator.

The court further criticized the FDA's methods in the case of Poornima Restaurant, comparing its findings with those of court-appointed lawyers who reported "refrigeration in shambles" at Mantralaya and Vidhan Bhavan canteens. The court stressed that the law must be enforced impartially, and no one, especially VIPs, should be above the law. In response to this, the FDA agreed to convert Poornima's suspension into an improvement notice and carry out a fresh inspection.

However, the court maintained a balance between procedural lapses and substantive food safety concerns. In the case of Udupi Swaad Restaurant in Thane, which had its licence suspended following an inspection that found its paneer sample unsafe and substandard, the court upheld the suspension, stating that the restaurant must first suffer the consequences of its actions and that poetic justice applies in such cases.