Sections 41 and 42 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 41 of the Food Safety and Standards Act, 2006 lets a Food Safety Officer search any place and seize food or adulterant on reasonable doubt that they are involved in an offence. Section 42 sets out the step-by-step route from inspection and sampling to a prosecution in court, with fourteen-day time limits for the Food Analyst and the Designated Officer.
A Food Safety Officer may search any place and seize food or adulterant if there is a reasonable doubt that it is involved in a food offence, and must then inform the Designated Officer in writing (s.41(1)). The Criminal Procedure Code provisions on search, seizure, summons, investigation and prosecution apply as far as may be (s.41(2)). Under s.42, the Food Analyst has fourteen days to send the report, the Designated Officer has fourteen days to send his recommendation in imprisonment cases, and the Commissioner of Food Safety decides whether the matter goes to an ordinary court or a Special Court.
Section 41: search and seizure
The power (s.41(1))
"Notwithstanding anything contained in sub-section (2) of section 31", the Food Safety Officer "may search any place, seize any article of food or adulterant, if there is a reasonable doubt about them being involved in commission of any offence relating to food, and shall thereafter inform the Designated Officer of the actions taken by him in writing".
Three points follow.
- The notwithstanding clause. Section 31(2) exempts petty and tiny operators from licensing. Section 41(1) says that exemption does not stop a search. A registered petty operator or a hawker can be searched like a licensed manufacturer.
- The threshold is "reasonable doubt" of involvement in an offence relating to food, not proof.
- The report-back duty. After acting, the officer must inform the Designated Officer in writing. Section 36(3)(f) then requires the Designated Officer to keep a record of inspections and the action taken.
The proviso says no search is irregular "by reason only of the fact that witnesses for the search are not inhabitants of the locality in which the place searched is situated". Missing local witnesses, on its own, does not make a search irregular. Section 38(7) separately requires the officer to call one or more persons to be present when he takes certain actions and to take their signatures. The FSO's specific sampling and seizure powers, the safe-custody bond and the destruction of perishables are in s.38; see our post on powers of Food Safety Officers during inspection.
The Code of Criminal Procedure (s.41(2))
Section 41(2) applies the provisions of the Code of Criminal Procedure, 1973 relating to search, seizure, summons, investigation and prosecution "as far as may be" to all action taken by the Food Safety Officer, save where the Act expressly provides otherwise. The Code of Criminal Procedure, 1973 was replaced with effect from 1 July 2024 by the Bharatiya Nagarik Suraksha Sanhita, 2023, and references in the Act to the old Code are now read as references to the new law. This article does not give new section numbers.
If you have been served with a seizure or a search has been conducted at your premises, our penalty and adjudication team can help you understand what follows and how to respond.
Section 42: the route to prosecution
Section 42 is a five-step procedure.
| Step | Sub-section | Who | What | Time |
|---|---|---|---|---|
| 1 | 42(1) | Food Safety Officer | Inspects the food business, draws samples and sends them to the Food Analyst | No period stated |
| 2 | 42(2) | Food Analyst | Analyses the sample and sends a report, stating the method of sampling and analysis, to the Designated Officer, copy to the Commissioner of Food Safety | Fourteen days |
| 3 | 42(3) | Designated Officer | Scrutinises the report and decides whether the contravention is punishable with imprisonment or fine only; in imprisonment cases, sends recommendations to the Commissioner | Fourteen days |
| 4 | 42(4) | Commissioner of Food Safety | If he deems fit, decides the forum according to the gravity of the offence | Within the period prescribed by the Central Government |
| 5 | 42(5) | Commissioner, then DO and FSO | Decision communicated to the Designated Officer and the concerned FSO, who launch the prosecution; also sent to the purchaser if the sample was taken under s.40 | No period stated |
Step 2: the analyst's report
The report must mention the method of sampling and analysis. That matters to the food business operator, because the method is what you test in any challenge. The fourteen days run from the analyst receiving the sample. For the procedure after an adverse report, including the operator's right to have a part of the sample re-analysed, see the Rules articles on analysis by the Food Analyst and the FBO's right to re-analysis.
Step 3: imprisonment or fine only
The Designated Officer's decision sorts cases. If the contravention is punishable with fine only, he can sanction or launch the prosecution himself under s.36(3)(e). If it is punishable with imprisonment, he must send his recommendations to the Commissioner within fourteen days. As amended by the Jan Vishwas (Amendment of Provisions) Act, 2023, s.59(i) now carries imprisonment up to three months and a fine up to three lakh rupees, while ss.61 and 63 carry a penalty of up to ten lakh rupees and no imprisonment, so read the sorting step with the amended text.
Step 4: which court
The Commissioner decides, "as per the gravity of offence", whether the matter goes to:
- (a) a court of ordinary jurisdiction for offences punishable with imprisonment up to three years; or
- (b) a Special Court for offences punishable with imprisonment exceeding three years, where such a Court is established. If no Special Court is established, those cases are tried by a court of ordinary jurisdiction.
The Special Courts themselves are created under s.74; see the article on sections 74 and 75.
What the time limits mean in practice
The fourteen-day periods are the Act's own. The Act does not say what happens if a period is missed, and this article does not say either. A food business operator who faces a prosecution should record the dates on which the sample was taken, the report was sent and the recommendation made, as they may matter in argument. Section 77 also sets a limit for bringing prosecutions; see the article on sections 76 and 77.
Example. An officer draws a sample of packed namkeen from a wholesaler on 3 March. The Food Analyst's report, sent within fourteen days, shows a contravention punishable only with a penalty. The Designated Officer need not send it to the Commissioner. If the report showed a contravention punishable with imprisonment, he would send his recommendation to the Commissioner within fourteen days of scrutinising the report.
Need help after a search, seizure or sample?
If an officer has searched your premises, seized stock or drawn samples, TaxClue can help you read the procedure against your case and plan the response. Please see our penalty and adjudication page.
Key takeaways
- A Food Safety Officer may search and seize on reasonable doubt, even where the premises are exempt from licensing, and must inform the Designated Officer in writing.
- Missing local witnesses alone do not make a search irregular.
- The Food Analyst has fourteen days to report; the Designated Officer has fourteen days to recommend in imprisonment cases.
- The Commissioner chooses between an ordinary court (up to three years) and a Special Court (over three years).
- References to the Code of Criminal Procedure, 1973 are now read as references to the Bharatiya Nagarik Suraksha Sanhita, 2023.
Read next
- Sections 39 and 40: FSO liability and the purchaser's right to analysis
- Seizure and destruction of unsafe food by the FSO
- Sampling procedures under FSSAI
- Sections 35 and 36: food poisoning notification and the Designated Officer
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). The Act cites the Code of Criminal Procedure, 1973, now read as the Bharatiya Nagarik Suraksha Sanhita, 2023. Verify current notifications, regulations and FSSAI orders before acting.