Sections 39 and 40 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 39 of the Food Safety and Standards Act, 2006 holds a Food Safety Officer liable to a penalty of up to one lakh rupees for vexatious seizure or an unnecessary act that injures someone, and fines a person who makes a proved false complaint. Section 40 lets an ordinary purchaser have a food article analysed by the Food Analyst on payment of a fee.
Section 39: a Food Safety Officer who vexatiously and without reasonable ground seizes food or an adulterant, or does any other act to a person's injury without reason to believe it necessary for his duty, is guilty of an offence and liable to a penalty up to one lakh rupees. A person who makes a false complaint, if proved, is punishable with a fine of at least fifty thousand and up to one lakh rupees. Section 40: a purchaser other than a Food Safety Officer may have an article analysed by the Food Analyst on payment of fees, but must tell the seller at the time of purchase; the fee is refunded if the article fails.
The two sections at a glance
| Provision | Who | What |
|---|---|---|
| 39(a) | Food Safety Officer | Vexatious seizure of food or adulterant without reasonable ground |
| 39(b) | Food Safety Officer | Any other act to a person's injury without reason to believe it necessary for his duty |
| 39 proviso | Complainant | Proved false complaint: fine of not less than Rs 50,000, up to Rs 1 lakh |
| 40(1) | Purchaser (not an FSO) | May have the article analysed by the Food Analyst on payment of fees |
| 40(1) first proviso | Purchaser | Must inform the food business operator at the time of purchase |
| 40(1) second proviso | Purchaser | Refund of fees if the report shows non-compliance |
| 40(2) | Food Analyst | Forwards an adverse report to the Designated Officer for prosecution under s.42 |
Section 39: when a Food Safety Officer goes too far
A Food Safety Officer has wide powers, including search and seizure (s.38 and s.41). Section 39 is the counterweight. It applies to an officer exercising powers under the Act, rules or regulations who:
- (a) vexatiously and without any reasonable ground seizes any article of food or adulterant; or
- (b) commits any other act to the injury of any person without having reason to believe that the act is necessary for the execution of his duty.
Such an officer "shall be guilty of an offence under this Act and shall be liable to a penalty which may extend to one lakh rupees".
Two words carry the test. "Vexatiously" means seizure aimed at harassment and "without any reasonable ground" means no basis for suspicion. Compare the enabling power in s.41(1), which rests on "reasonable doubt" that the food or adulterant is involved in an offence relating to food. A seizure with that footing is not what s.39 targets; a seizure the officer cannot justify by any reasonable ground is.
A business that believes a seizure was vexatious can raise it through the channel the Act provides: a written complaint against a Food Safety Officer is investigated by the Designated Officer under s.36(3)(h). See the article on sections 35 and 36. The Act does not say in s.39 who imposes the penalty on the officer, so this article does not guess at the forum.
The proviso: false complaints
The proviso protects officers too: "in case any false complaint is made against a Food Safety Officer and it is proved so, the complainant shall be guilty of an offence under this Act and shall be punishable with fine which shall not be less than fifty thousand rupees but may extend to one lakh rupees." So a complaint must be made with a basis; a business cannot use a complaint as a tactic to stall an inspection. The key words are "proved so": the falsity must be established, not merely alleged.
If you have an inspection that you think was conducted improperly and want advice on how to record your objection without obstructing the officer, see our compliance support page. Obstruction is itself an offence; see our post on obstructing a Food Safety Officer (which deals with s.62).
Section 40: the purchaser's right to analysis
What the purchaser may do (s.40(1))
"Nothing contained in this Act shall be held to prevent a purchaser of any article of food other than a Food Safety Officer from having such article analysed by the Food Analyst on payment of such fees and receiving from the Food Analyst a report of his analysis within such period as may be specified by regulations."
The right is open to any purchaser other than an FSO, so a customer, a restaurant buying raw material, a retailer buying from a distributor, or a consumer group can use it. The FSO has his own sampling power under s.38.
The conditions
- Tell the seller at the time of purchase. The first proviso says the purchaser "shall inform the food business operator at the time of purchase of his intention to have such article so analysed". After the sale, it is too late.
- Pay the fees. The fees and time for the report are as specified by regulations.
- Refund if the food fails. Under the second proviso, if the Food Analyst's report shows the article is not in compliance with the Act or the rules or regulations, the purchaser "shall be entitled to get refund of the fees paid".
Procedure under the Rules
Rule 2.4.4 of the FSS Rules, 2011 (compendium of 1 April 2025) fills in the procedure. A purchaser must give notice in writing, then and there, in Form V B to the person from whom he bought the article. The sample is divided into two parts: one goes to the Food Analyst and the other to the Designated Officer, for use if the food business operator appeals against the report. The purchaser pays the prescribed fee. The Food Analyst's report is to be sent within 14 days of receiving the article, in Form VII A, and an adverse report also goes in triplicate to the Designated Officer of the area of purchase. See our Rule 2.4.4 article.
What happens to an adverse report (s.40(2))
If the Food Analyst finds the sample in contravention of the Act, rules or regulations, the analyst "shall forward the report to the Designated Officer to follow the procedure laid down in section 42 for prosecution". Under s.42 the Designated Officer scrutinises the report and decides whether the contravention is punishable with imprisonment or fine only; see our article on sections 41 and 42. Section 42(5) adds that the Commissioner's decision is also communicated to the purchaser if the sample was taken under s.40. So a purchaser is kept informed of the outcome.
Who should care
- Food businesses should treat any customer who says "I will get this tested" as a possible s.40 purchaser and keep batch records, since the article's results can start a prosecution.
- Consumers and buyers gain a route that does not depend on an officer's visit.
- Sellers should note that the notice must come at the time of purchase. A later complaint is not a s.40 notice.
Example. A caterer buys a sealed packed ingredient from a distributor and says at the counter that he will send it for analysis. The report comes back showing the article fails the standard. The caterer gets the fee refunded, and the Food Analyst forwards the report to the Designated Officer for the s.42 procedure.
Need help with a sample, a report or an inspection?
If a purchaser has sent your product for analysis, or you want to understand your position after an adverse report, TaxClue can go through the report and procedure with you. Start with our compliance support page.
Key takeaways
- A Food Safety Officer who seizes vexatiously or acts without reason to believe it necessary faces a penalty up to one lakh rupees.
- A proved false complaint against an FSO carries a fine of Rs 50,000 to Rs 1 lakh.
- Any purchaser other than an FSO may have food analysed by the Food Analyst on payment of fees.
- The purchaser must tell the seller at the time of purchase; the fee is refunded if the food fails.
- An adverse report goes to the Designated Officer for the s.42 prosecution procedure.
Read next
- Rule 2.4.4: purchaser may have food analysed
- Sections 41 and 42: search, seizure and procedure for launching prosecution
- Powers of Food Safety Officers during inspection
- Food Analyst: appointment, powers and certificate
Disclaimer: Based on the Food Safety and Standards Act, 2006 as enacted, read with the Jan Vishwas (Amendment of Provisions) Act, 2023 where it applies (ss.59, 61 and 63 only) and the FSS Rules, 2011 (compendium of 1 April 2025). Verify current notifications, regulations and FSSAI orders before acting.