Ashokbhai Kanubhai Ravani and Ors Vs State of GujGJ201719051716183035COM694479

MANU/GJ/0906/2017
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Criminal Misc. Application (For Quashing & Set Aside FIR/Order) No. 6991 of 2014
Decided On: 05.05.2017
Appellants: Ashokbhai Kanubhai Ravani and Ors.
Vs.
Respondent: State of Gujarat and Ors.
Hon'ble Judges/Coram:
J.B. Pardiwala, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Y.S. Lakhani, Sr. Counsel and Pravin Gondaliya, Adv.
For Respondents/Defendant: Nisha Thakore, A.P.P.
JUDGMENT
J.B. Pardiwala, J.
1 . By this application, the applicants, original accused, seek to invoke the inherent
powers of this Court praying for quashing of the Criminal Case No. 580 of 2008
pending in the Court of the learned Chief Judicial Magistrate, Amreli arising from the
First Information Report being C.R. No. I-8 of 2008 registered with the Amreli Taluka
Police Station, Amreli for the offence punishable under Sections 406, 420, 272 and
273 read with Section 114 of the Indian Penal Code and Sections 5(7), 16 and 17A of
the Prevention of Food Adulteration Act.
2 . The respondent No. 2, original first informant, while on duty near the Savar-
kundla cross-road by-pass spotted the applicant No. 1 holding something in his hand.
The respondent No. 2 inquired with the applicant No. 1 as to what he had in his
hands. The respondent No. 2 noticed that the applicant No. 1 had a box of "Ghee".
The respondent No. 2 drew a panchnama of the seizure of the box containing "Ghee"
in presence of the local witnesses. The respondent No. 2 had an information that
adulterated "Ghee" was being sold in abundance in the market. In such
circumstances, the respondent No. 2 had kept a vigil over such activity. It is the case
of the prosecution that the "Ghee" was not only adulterated but the same was also
misbranded. In such circumstances, the respondent No. 2 registered the First
Information Report for the offences enumerated above.
3. At the end of the investigation, the charge-sheet came to be filed and the filing of
the charge-sheet culminated in the Criminal Case No. 580 of 2008 pending in the
Court of the learned Chief Judicial Magistrate, Amreli.
4. Mr. Lakhani, the learned senior counsel appearing with Mr. Gondaliya, the learned
counsel appearing for the applicants submitted that the prosecution instituted against
the applicants on a police report for the offence punishable under the Prevention of
Food Adulteration Act is not tenable in law. It is submitted that the respondent No. 2
being a Police Officer had no authority to lodge the First Information Report in
respect of the offence punishable under the Provisions of Food Adulteration Act. It is
further submitted that no procedure as envisaged under the Provisions of the Act,
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1954 and the Rules framed thereunder, was followed at the time of collecting the
samples of "Ghee". Mr. Lakhani, the learned senior counsel appearing for the
applicants submitted that this issue is no longer res integra in view of the decision of
this Court in the case of Shambhu Dayal Agrawal & Others v. State of Gujarat,
reported in MANU/GJ/0049/2003 : 2003 (2) GLH 621.
5 . Mr. Lakhani, the learned counsel submits that in such circumstances referred to
above, the prosecution for the offence under the Indian Penal Code is also not
tenable in law. According to Mr. Lakhani, Sections 272, 273, 406 and 420 of the
Indian Penal Code has no application so far as the fact of the present case are
concerned.
6. Mr. Lakhani submitted that for the very same offences the Food Inspector lodged a
complaint in the Court of the learned Chief Judicial Magistrate, Amreli culminating in
the Criminal Case No. 841 of 2008. The said complaint is for the offence punishable
under the provisions of the Prevention of Food Adulteration Act, 1954. The learned
Chief Judicial Magistrate took cognizance upon the complaint and issued process
against the applicant No. 1 herein. Thus, according to Mr. Lakhani, the applicant No.
1 has already being prosecuted for the offence alleged under the Special Act relating
to the adulteration of food article.
7. Mr. Lakhani prays that there being merit in this application relief as prayed for be
granted and the prosecution be quashed.
8. On the other hand, this application has been vehemently opposed by Ms. Thakore,
the learned Additional Public Prosecutor appearing for the State. According to Ms.
Thakore, the Police Officer could not have registered the First Information Report so
far as the offence under the Food Adulteration Act is concerned, but, the prosecution
is maintainable so far as the offence under the Indian Penal Code are concerned.
9. Having heard the learned counsel appearing for the parties and having considered
the materials on record, the only question that falls for my consideration is whether
the prosecution instituted against the applicants deserves to be quashed.
10. Let me straightway look into the judgment of this Court in the case of Shambhu
Dayal Agrawal (supra). In the said case, the First Information Report was lodged
before the Unjha Police Station for the offence punishable under Sections 406, 420,
272, 273, 326, 328, 511 and 120-B of Indian Penal Code and Section 16 of the
Prevention of Food Adulteration Act, 1954. The First Information Report was lodged
by the Police-Sub-Inspector of the Unjha Police Station. While patrolling the Police-
Sub-Inspector received an information that certain edible goods were being carried in
a truck. The Truck was intercepted. Neither the driver nor the owner of the transport
company could render any satisfactory explanation, and ultimately, the samples were
collected in presence of the Food Inspector. It was found that the said edible goods
were adulterated.
11. The accused - Shambhu Dayal Agrawal and others came before this Court by
filing an application under Section 482 of the Code. The principal argument before
the learned Single Judge of this Court was that the Police Officer could not have
registered the First Information Report for the alleged offences. The learned Single
Judge accepted the contention and quashed the First Information Report filed by the
Police-Sub-Inspector. I may quote the observations of the learned Judge as under:-
"6. It has been mainly contended that the Police Sub-Inspector has no

authority to file F.I.R. before the Police for the offences in question. In fact,
even looking to the averments made in the F.I.R. no offence can be said to
have been made out and therefore it would be an abuse of court process to
permit further investigation and submission of the charge-sheet at the end of
the investigation by the Investigating Officer in the said matter. Therefore,
no offence has been made even prima facie, therefore the F.I.R. may be
quashed. 4. On receipt of the above petition, notice was issued and rule was
issued thereafter. 5. Learned A.P.P. has appeared on behalf of the State. I
have heard the learned advocate for the petition and the learned A.P.P. for
the State who have taken me through the F.I.R. and legal aspects of the
case.
6 . It has been mainly contended by the learned advocate for the petitioner
that the Police Sub-Inspector has no authority or power to file the F.I.R. or
complaint in respect of the offences punishable under the provisions of The
Prevention of Food Adulteration Act, 1954 (for short "the said Act"). He has,
drawn my attention to the provisions made in the said Act. If we go by the
scheme of the said Act, it is very clear that the powers have been given to
the Food Inspector for collecting the samples and for sending them to the
Public Analyst and also to file complaint against the persons who are found
to be guilty of the offences punishable under the said Act. In the present
case, a Food Inspector appointed u/s. 9 of the Act, has not filed the
complaint but a F.I.R. has been filed by the Police Sub-Inspector. The Police
Sub-Inspector cannot be equated with Food Inspector and therefore the
Police Sub-Inspector cannot claim any right, power or authority to file the
F.I.R. for the offences punishable under the said Act.
7. It is required to be considered that the under Section 12 of the said Act,
even the purchaser has also been empowered to take samples and send the
same to the Public Analyst for analysis. In the present case, we find that the
Police Sub-Inspector has not purchased the food samples in question and
therefore he is not a purchaser. Therefore, he cannot file the complaint or the
F.I.R. even in his capacity as purchaser.
8 . Then the learned advocate for the petitioners has also taken me through
the provisions of the Prevention of Food Adulteration Rules, 1955
(hereinafter referred to as "the said Rules"). Rule 9 of the said Rules,
provides for the duties of the Food Inspector and there are also provisions as
to the manner in which food samples are required to be collected. In the
present case, we find that the F.I.R. etc. do not speak that the procedure and
rules have been observed and followed by the P.S.I. while taking the
samples.
9. Rule 12 of the said Rules also states that when the Food Inspector takes a
sample of an article for the purpose of analysis, he has to give notice of his
intention to do so in writing in form VI, then and there, to the person from
whom he takes the sample and simultaneously, by appropriate means, also
to the persons if any, whose name, address and other particulars have been
disclosed under Section 14-A of the Act. The F.I.R. does not state that this
process was undertaken by the Police Sub-Inspector while taking the
samples.
10. Then Rule 14 of the said Rules provide for manner for sending samples

for analysis. The F.I.R. etc. do not show that this Rule was followed by the
Police Sub-Inspector while forwarding the samples to the Public Analyst.
11. Rule 16 of the said Rules, provides for packing and sealing the samples.
The F.I.R. does not show that this Rule was followed while packing and
sealing the samples in question.
1 2 . Rule 17 of the said Rules, provides for manner of despatching the
containers of samples. Again the F.I.R. is silent on the point as to whether
this procedure was followed by the Police Sub-Inspector while despatching
the samples in question.
13. Rule 18 of the said Rules says that a copy of memorandum and specimen
impression of the seal used to seal the packet, shall be sent, in a sealed
packet separately to the Public Analyst by any means immediately but not
later than the succeeding working day. Again the F.I.R. does not show that
the Police Sub-Inspector has followed this provision made under Rule 18 of
the Rules while while sending the samples to the Public Analyst.
14. Rule 19 further says that the preservatives are required to be added in
the food samples. Again the F.I.R. does not show that any preservative was
added to the food samples.
15. Section 10(3) of the said Act provides that the complainant is required to
pay for the samples purchased by him. In the present case, we find that in
the F.I.R. it is not stated that the price of the goods in respect of which the
samples were collected was paid to the vendor.
16. Section 11 of the said Act also provides that after taking the samples,
the same is required to be divided into three parts, and one of the same is
required to be sent to the Public Analyst and two other parts are required to
be sent to the Local (Health) Authority for the purpose of sub-section (2) of
this Section and sub-sections (2-A) and (2-E) of Section 13.
17. Section 13 of the said Act, says that even the accused person has a right
to obtain second opinion from the Central Food Laboratory and the report of
the said Central Food Laboratory would be a separate report from the report
of the Public Analyst. There is nothing in the F.I.R. to show that some
portion of the samples in question was preserved so that the present
petitioners could request the concerned Court for sending the samples to the
Central Food Laboratory. It is well settled that these provisions are
mandatory and are required to be strictly complied with. If the petitioners are
unable to exercise their right of applying before the learned Magistrate for
having second opinion from the Central Food Laboratory, then a very
valuable right of the petitioners can be said to have been infringed and
therefore his defence is likely to be adversely and prejudicially affected.
18. It is very clear that in the present case no procedure as laid down in the
said Act and Rules has been followed by the Police Sub-Inspector. Learned
A.P.P. is unable to say that the procedure as indicated in the said Act and
Rules has been followed. In that view of the matter, the samples have been
taken by the Police Sub-Inspector without following procedure as laid down
in the said Act and Rules.

19. On one hand, the Police Sub-Inspector is not competent to file complaint
for the offences punishable under the said Act and on the other hand he is
not the purchaser as indicated above. Even he has not followed the
procedure required to be followed for taking the samples for preserving the
samples and for despatching the samples to the Public Analyst. A valuable
right of the petitioners of having second opinion has been lost as there is
nothing on record to show that the said samples have been preserved as
aforesaid. In view of the violation of the aforesaid mandatory provisions, it is
clear that no fruitful purpose will be served by allowing the prosecution to go
ahead with investigation and trial.
20. It is well settled that the petitioners have right of getting second opinion
from the Central Food Laboratory. Their defence can be said to have been
adversely affected and in that case also the complaint is required to be
quashed and set aside.
21. In that case this is a fit case for exercising discretionary jurisdiction and
power under Section 482 of the Code for quashing and setting aside the
F.I.R. Learned A.P.P. appearing on behalf of the State is unable to support
the case of the State or of the Police Sub-Inspector.
22. For the foregoing reasons, this petition is allowed. The First Information
Report being CR No. 22 of 2001 filed by the Police Sub-Inspector before the
Unjha Police Station and consequent investigation in respect thereof are
ordered to be quashed and set aside. The petitioners shall not be prosecuted
in respect of the said offences on the basis of the F.I.R. filed by the Police
Sub-Inspector. This does not mean that even the Food Inspector is debarred
from prosecuting the petitioners. Rule is made absolute to the above extent."
12. My attention has been drawn to a Division Bench decision of the Allahabad High
Court in the case of M/S. Pepsi Co. India Holdings v. State of U.P., Writ Petition No.
8254 of 2010 decided on 8th September, 2010 dealing with almost an identical issue.
13. In the said Writ-Petition, the validity of the Government order dated 11.05.2010
directing the Police to register cases or initiate action under Section 272/273 of IPC
was questioned on the ground that it had resulted in gross violation of the
fundamental rights of the employees and agents of the Company as available under
Articles 14 and 21 of the Constitution of India. The argument before the Division
Bench was that on coming into force of the PFA Act, it repealed Section 272 and 273
IPC by necessary implication as it occupied complete field with regard to the
"Adulteration of Food Stuff" and also on the principal of special law prevailing over
the general law to the extent Section 272/273 IPC Code covered by the PFA Act. The
Division Bench while allowing the writ-petitions and quashing the impugned
Government Order issued by the State Government held as under:-
"In all the afore-captioned writ petitions, petitioners have questioned the
validity of the Government Order dated 11.5.2010 issued by the State
Government directing the police to register cases or initiate action under
Sections 272/273 IPC inter alia on the ground that it has resulted in gross
violation of fundamental rights of the employee's and agents of the Company
as available under Article 14 and 21 of the Constitution of India and have
consequently prayed for quashing of the FIR registered against the
employees of the Company in different districts of the State of Uttar Pradesh.

In writ petition No. 8254 (MB) of 2010, petitioner No. 2 Sumit Sehgal is the
distributor of the company, who has been arrested on 11.8.2010 in
pursuance of FIR dated 11.8.2010 registered as Case Crime No. 392 of 2010
under Sections 272/273 IPC at PS Cantt. District Varanasi.
In Writ Petition No. 8255 (MB) of 2010, petitioner No. 2 Wajid Ali is Quality
Control Executive of the Company and petitioner No. 3 Mohd. Shahid is
Manager of the CFA Agency of the company. They were arrested in pursuance
of the FIR dated 11.8.2010 registered at PS Khuldabad, District Allahabad as
Case Crime No. 244 of 2010 under Section 273 IPC
In writ petition No. 8256 (MB) of 2010, petitioners were arrested pursuant to
the FIR dated 12.8.2010 registered at police station Rohania District Varanasi
as case crime No. 144/10 under Section 419, 420, 467, 468, 471 IPC and
Section 7/16 of the PFA Act and Rules 32, 49, 50 of the Rules framed
thereunder. In the said case, the prosecution moved an application for
alteration of sections, which was allowed by the competent Court and the
petitioners were remanded only under Section 273 IPC and Sections 51 and
57 of the Food Safety and Standards Act, 2006.
Draped in brevity, the facts of the case are that the petitioner-Pepsico India
Holdings Private Limited, is a company registered under the provisions of the
Companies Act, 1956. The company is engaged in the business of
manufacturing of soft drinks inter-alia under the brand name of PEPSI, Lehar,
7 U.P., Slice and Miranda etc. The company is aggrieved by the issuance of
the Government Order dated 11.5.2010 issued by the State Government as it
gives unfettered powers to the authorities to initiate action against violators
or suspected violators for food adulteration and misbranding by invoking
Sections 272/273 IPC by registering FIRs. After the issuance of the aforesaid
Government Order, various products of the Company were seized from the
go-down and FIRs were registered against the officers/agents of the
company under Sections 272/273 IPC and Section 7/16 of the Prevention of
Food Adulteration Act, 1954 [hereinafter referred to as the 'PFA Act'].
Sri Nagendra Rao, learned Counsel for the petitioners, while giving a
summary of the history of legislation on Food laws, took us to the past and
stated that Chapter XIV of the Indian Penal Code deals with "Offences
affecting the public health". Sections 272 and 273 IPC deal with public health
by making penal offences pertaining to adulteration of food etc. and sale of
noxious food or drink. Thereafter the Parliament in the year 1954 enacted
"The Prevention of Food Adulteration Act, 1954" which was a complete code
in itself providing for various penalties for adulteration of food stuff and
other related subjects. It also provided an exhaustive procedure for the
inquiry and trial of such offences, regulating the manufacture, sale and
distribution etc of "Food".
According to Counsel for the petitioners, on coming into force of the PFA Act,
it repealed Sections 272 and 273 IPC by necessary implication as it occupied
complete field with regard to 'adulteration of foodstuff' and also on the
principle of a special law prevailing over a general law to the extent Sections
272/273 IPC got covered by the PFA Act. In the said PFA Act and Sections
272 IPC, the State of Uttar Pradesh brought amendments in the year 1975
whereby Section 16 of the PFA Act was amended and the period of

imprisonment of 6 years was substituted with 'imprisonment for life'.
Similarly amendments were incorporated in Section 272 IPC, whereby
imprisonment for six months was also substituted by 'imprisonment for life'.
The offences under both the aforesaid Acts were also made cognizable and
non-bailable. Thereafter, the Parliament made further amendments to the PFA
Act through the Act No. 34 of 1976. By this amendment graded punishment
based on the degree of violation was introduced. Recently, the Parliament in
the year 2006 passed the Food Safety and Standards Act (in short, referred
to as 'FSSA'). Various provisions of FSSA were notified from time to time but
finally on 29th July, 2010, Section 97 of FSSA, which repealed all other food
related laws, was notified.
It has been vehemently argued that invocation of sections 272/273 IPC by
registering the impugned FIR originate from the impugned Government
Order, is in clear violation of Article 14 of the Constitution, as in any other
part of the Country, if there is any adulteration, same will be dealt with
under FSSA by following the procedure laid down therein. Astonishingly, the
authorities in the State of U.P. are not invoking the provisions of FSSA and
instead the persons are being arrested under sections 272/273 IPC thereby
the fundamental rights of the petitioners as guaranteed by Article 14 stand
violated since in cases where provisions of FSSA are invoked the defaulter
gets benefit of procedure and safeguards as provided under the Act whereas
in the present cases, pursuant to the Government Order, referred to above,
the authorities have chosen to invoke sections 272/273 IPC without even
waiting for the report of Public Analyst. Since the alleged offence as
disclosed in the FIR are covered under the provisions of FSSA and as such
there cannot be any violation of section 272/273 IPC.
Elaborating his arguments, Sri Nagendra Rao argued that there are certain
ingredients for constituting an offence under section 272 IPC. Similarly,
section 273 requires certain ingredients to be fulfilled before the offence of
adulteration can be said to be made out. The ingredients are that somebody
selling the food article or drinks which has been rendered noxious or unfit
for food/drink with such knowledge or having reasons to believe that the
same is noxious food item. To put differently, sections 272/273 IPC are only
attracted, if it is shown that the adulteration is deliberate, intentional or with
the knowledge. In the absence of any such evidence or allegations, the
ingredients of offence under sections 272/273 IPC are not constituted. In any
event intention to adulterate or the knowledge that the product is adulterated
cannot be remotely attributed to the petitioners nor there is any such
allegation in the complaint.
Learned Counsel for the petitioners next argued that the impugned
Government Order directing the subordinates to initiate action under Sections
272/273 IPC is completely misconceived in law as Sections 272/273 IPC are
not applicable to the cases of food adulteration as upto 29th July, 2010 all
such cases were required to be dealt under the PFA Act and with effect from
29th July, 2010 the provisions of the said PFA Act and other food related
laws relating to sampling, imposition of penalties for adulteration and other
connected matters have been repealed by the introduction of Food Safety and
Standards Act, 2006.
On the strength of paras 15 and 20 of the judgment rendered in Jeewan

Kumar Raut and another v. Central Bureau of Investigation
[MANU/SC/1153/2009 : 2009 (7) UJ SC 3135], Sri Rao vehemently argued
that action of the respondents in registering the F.I.R. instead of proceeding
as per procedure, prescribed under the FSSA, is highly unjustified and
illegal. The said judgment relates to the Transplantation of Human Organs
Act, 1994, which has been referred to as 'TOHO' therein. Paragraphs 15 and
20 of the judgment, on which reliance has been placed, are reproduced
hereunder:-
"15. TOHO being a special statute, Section 4 of the Code, which
ordinarily would be applicable for investigation into a cognizable
offence or the other provisions, may not be applicable. Section 4
provides for investigation, inquiry, trial, etc. according to the
provisions of the Code. Sub-section (2) of Section 4, however,
specifically provides that offences under any other law shall be
investigated, inquired into, tried and otherwise dealt with according
to the same provisions, but subject to any enactment for the time
being in force regulating the manner or place of investigating,
inquiring into, tried or otherwise dealing with such offences. TOHO
being a special Act and the matter relating to dealing with offences
thereunder having been regulated by reason of the provisions
thereof, there cannot be any manner of doubt whatsoever that the
same shall prevail over the provisions of the Code.
20. It is a well-settled principle of law that if a special statute lays
down procedures, the ones laid down under the general statutes
shall not be followed. In a situation of this nature, the respondent
could carry out investigations in exercise of its authorization under
Section 13(3)(iv) of TOHO. While doing so, it could exercise such
powers which are otherwise vested in it. But, as it could not file a
police report but a complaint petition only; Sub-section (2) of
Section 167 of the Code may not be applicable. The provisions of the
Code, thus, for all intent and purport, would apply only to an extent
till conflict arises between the provisions of the Code and TOHO and
as soon as the area of conflict reaches, TOHO shall prevail over the
Code. Ordinarily, thus, although in terms of the Code, the
respondent upon completion of investigation and upon obtaining
remand of the accused from time to time, was required to file a
police report, it was precluded from doing so by reason of the
provisions contained in Section 22 of TOHO. To put it differently,
upon completion of the investigation, an authorized officer could
only file a complaint and not a police report, as a specific bar has
been created by the Parliament. In that view of the matter, the police
report being not a complaint and vice-versa, it was obligatory on the
part of the respondent to choose the said method invoking the
jurisdiction of the Magistrate concerned for taking cognizance of the
offence only in the manner laid down therein and not by any other
mode. The procedure laid down in TOHO, thus, would permit the
respondent to file a complaint and not a report which course of
action could have been taken recourse to but for the special
provisions contained in Section 22 of TOHO."
Placing reliance on Jatinder Kumar Jain vs. State of Punjab; [2008 (2) FAC

437] learned Counsel for the petitioners has argued that registering of the
FIRs under the Penal Code against the employees and agent of the company
without following the procedure laid down in the special statute i.e. FSSA is
not permissible.
Referring to the case of Jamiruddin Ansari v. CBI; MANU/SC/0924/2009 :
(2009) 6 SCC 316, Sri Rao submitted that in this case the Apex Court has
held that the provisions of Maharashtra Control of Organised Crime Act
(MCOCA) would have an overriding effect over the provisions of Code of
Criminal Procedure. In paragraph 67 of the report, the Apex Court observed
as under:
"We are also inclined to hold that in view of the provisos of section
25 of MCOCA, the provisions of the said Act would have an
overriding effect over the provisions of the Criminal Procedure Code
and the learned Special Judge would not, therefore, be entitled to
invoke the provisions of Section 156(3) Cr.P.C. for ordering a special
inquiry on a private complaint and taking cognizance thereupon,
without traversing the route indicated in Section 23 of MCOCA."
On behalf of the State, it has been argued that the impugned Circular dated
11.5.2010 is nothing, but a direction to follow the rule of law as it had come
to the knowledge of the State Government that the FIRs are not being
registered by the Food Inspectors and Drug Inspectors even in the case of
cognizable offences. The said Circular is only a reminder to the authorities to
do work according to law and nothing else. It is incorrect to say that FIRs
have been registered pursuant to the circular dated 11.5.2010.
During the course of argument, a feign attempt was also made regarding
maintainability of the writ petition at Lucknow as no cause of action has
arisen within the territorial jurisdiction of Lucknow. However, this point was
not seriously pressed when it was pointed out that the primary relief relates
to the quashing of the Government Order/Circular dated 11.5.2010 and the
quashing for FIRs is the consequential relief.
Learned State Counsel has also pointed out that the Act of 2006 is a Central
Act. Various provisions of the said Act of 2006 have been notified in the
official gazette on various dates. Some provisions of the said Act came into
force on 15.10.2007, some provisions came into force on 25.7.2008, some
on 28.8.2008, some on 11.8.2008, some on 9.3.2009, some on 26.6.2009,
some on 31.7.2009 and last by some on 29.7.2010. Therefore, the Union of
India is a necessary party to place various objects and reasons including the
Doctrine of Implied Repeal. Moreover, Section 29(1) of the FSSA deals with
express repeal, which provides that the enactments and orders specified in
the Second Schedule have been repealed from 29.7.2010 i.e. the appointed
date. The Second Schedule mentions about 8 Acts or orders in which not a
single provisions of the Penal Code has been mentioned. Thus, it is clear that
the relevant provisions of the Penal Code i.e. Sections 272 and 273 have not
been repealed by any express provision. In support of this contention
reliance has been placed upon State of M.P. vs. Kedia Leather and Liquor Ltd.
and others MANU/SC/0625/2003 : (2003) 7 SCC 389.
It has been vehemently argued that the provisions of the Penal Code shall

not be repealed unless there is express provision to that effect as was done
by the Parliament while enacting Prevention of Corruption Act. Moreover, the
provisions of the FSSA and the relevant provisions of the Penal Code are not
contradictory to each other. Reliance in this regard has been placed on Basti
Sugar Mills Co. Ltd. vs. State of U.P. and another MANU/SC/0258/1978 :
(1979) 2 SCC 86. In the Code of Criminal Procedure (Cr.P.C.), there are
various stages like investigation, cognizance, prosecution, conviction,
sentence which are altogether different to the procedure provided in the
FSSA as such the provisions of FSSA do not have any overriding effect upon
the relevant provisions of the Cr.P.C. Furthermore, the assertion of the
petitioners that the instant case is fully covered with the decision of the Apex
Court in Jeevan Kumar Raut's (supra) is wholly misconceived as in the
instant case, the relevant provisions of the Code remained intact as doctrine
of implied repeal is not applicable.
Lastly, it has been submitted that in clause 3(j) of the definition clause of
FSSA, the word "food" has been defined. The recovered article does not
come within the meaning of "Food" as such the provisions of FSSA are not
applicable in the present case.
Countering the allegations of the State Counsel, petitioners' Counsel
submitted that assertions of the State Counsel that date of repeal is yet to be
notified is wholly fallacious as the notification bringing into force Section 97
of the FSSA has to be read in light of Section 1(3) and Section 5(3) of the
General Clauses Act. A bare reading of Section 97(1) with the second
Schedule as well as Column Comments under the caption "Notes on Clauses"
supplied with the Act will make it abundantly clear that "this section seeks to
repeal the enactment and orders specified in second Schedule immediately
w.e.f. the date on which Act is enacted and comes into force.
Clarifying the position, it has been submitted that section 97(2) is not
dependent on Section 97(1) and it has come into force on 29th July, 2010.
By the impact of Section 97(2) all State Amendments corresponding to FSSA
stand repealed, meaning thereby if subject matter of any State Amendment is
included in FSSA, the same stands repealed w.e.f. 29th July, 2010 since
State Amendment amending section 272 and section 273 IPC and section 16
PFA Act deals with the same subject of food adulteration which is now fully
covered by FSSA, the same stands repealed irrespective of the fact that
whether PFA Act is repealed or not. In fact, the State by its own admission
has accepted repeal of PFA Act in the FIR impugned in Writ Petition No.
8255(MB) of 2010. Originally, the State had invoked Section 16 PFA Act
which has now been replaced by Section 51 and 57 of FSSA.
Learned Counsel for the petitioners submitted that definition of 'food' is an
inclusive definition and includes any substance which is intended for human
consumption. The word 'substance' as defined in Section 2(zw) of FSSA
includes any natural or artificial substance or other matter, whether it is in
solid state or in liquid form or in the form of gas or vapour. It is nobody's
case that carbonated drinks or juice based beverages are not intended for
human consumption or that they are not substances for the purposes of
Section 2(zw). Moreover, under Section 5 of PFA Act, standards were laid for
various food articles in Appendix B. In Appendix B, carbonated water is
defined in entry A.01.01 Similarly juice based beverages are defined in Entry

A.15 of Appendix B. By virtue of Section 98, the rules including Appendix B
have been temporarily transported to FSSA till the regulations under the
FSSA are notified. It would, therefore, be absurd to contend that although
the standards for this product are provided treating it to be food stuff, but it
otherwise is not an article of food.
Learned Counsel for the petitioners has also urged that sale of unsafe food is
a violation under Section 59 of FSSA where the punishment varies from six
months to seven years. Unsafe food is defined under Section 2(zz) of FSSA,
which also includes food which is harmful to health or repugnant to human
use. Reliance has also placed on the judgment passed by a Division Bench of
the Hon'ble High Court of Kerala in Chami vs. Excise Inspector
[(MANU/KE/0541/2005 : 2006 (1) KLT 511)] wherein the Court has dealt
with the definition and the interpretation of the word 'noxious' and has come
to the conclusion at Para 4 that for a substance to become noxious it should
be harmful to health.
The Ministry of Health and Family Welfare, New Delhi issued a notification
dated 29th July, 2010 with regard to coming into force of various provisions
of the FSSA, 2006. The notification reads as under:-
"S.O. 1855(E):-In exercise of the powers conferred by sub-section
(3) of Section 1 of the Food Safety and Standards Act, 2006 (34 of
2006), the Central Government hereby appoints the 29th day of July,
2010 as the date on which the provisions of Section 19 to 21 (both
inclusive), Sections 23 to 29 (both inclusive), Sections 31 to 35
(both inclusive), Sections 48 to 80 (both inclusive), Sections 89,
Section 94 to 98 (both inclusive) and Section 100 of the said Act,
shall come into force."
As much emphasis has been laid on the various provisions of the FSSA, we
deem it proper to reproduce certain relevant provisions of the Act. FSSA was
enacted by the Parliament with a view to consolidate the laws relating to
food and to establish the Food Safety and Standards Authority of India for
laying down science based standards for articles of food and to regulate their
manufacture, storage, distribution, sale and import to ensure availability of
safe and wholesome food for human consumption and for matters connected
therewith.
The statement of object and reasons of the Act reads as under:-
(1) Multiplicity of foods laws, standard setting and enforcement
agencies pervades different sectors of food, which creates confusion
in the minds of consumers, traders, manufacturers and investors.
Detailed provisions under various laws regarding admissibility and
levels of foods additives, contaminants, food colours, preservatives,
etc., and other related requirements have varied standards under
these laws. The standards are often rigid and non-responsive to
scientific advancements and modernization. In view of multiplicity of
laws, their enforcement and standard setting as well as various
implementing agencies are detrimental to the growth of the nascent
food processing industry and is not conducive to effective fixation of
food standards and their enforcement.

(2) In as early as in the year 1998, the Prime Minister's Council on
Trade and Industry appointed a Subject Group on Food and Agro
Industries, which had recommended for one comprehensive
legislation on Food with a Food Regulatory Authority concerning
both domestic and export markets. Joint Parliamentary Committee on
Pesticide Residues in its report in 2004 emphasized the need to
converge all present food laws and to have a single regulatory body.
The Committee expressed its concern on public health and food
safety in India. The Standing Committee of Parliament on Agriculture
in its 12th Report submitted in April 2005 directed that the much
needed legislation on Integrated Food Law should be expedited.
(3) As an ongoing process, the then Member-Secretary, law
Commission of India, was asked to make a comprehensive review of
Food Laws of various developing and developed countries and other
relevant international agreements and instruments on the subject.
After making an in-depth survey of the International scenario, the
then Member-Secretary recommended that the new Food Law be
seen in the overall prospective of promoting nascent food processing
industry given its income, employment and export potential. It has
been suggested that all acts and orders relating to food be subsumed
within the proposed Integrated Food Law as the international trend is
towards modernization and convergence of regulations of Food
Standards with the elimination of multi-level and multi-departmental
control. Presently, the emphasis is on (a) responsibility with
manufactures, (b) recall, (c) Genetically Modified and Functional
Foods, (d) emergency control, (e) risk analysis and communication
and (f) Food Safety and Good Manufacturing Practices and Process
Control, viz., Hazard Analysis and Critical Control Point.
(4) In this background, the Group of Ministers constituted by the
Government of India, held extensive deliberations and approved the
proposed Integrated Food Law with certain modifications. The
Integrated Food Law has been named as 'The Food Safety and
Standards Bill, 2005'. The main objective of the Bill is to bring out a
single statute relating to food and to provide for a systematic and
scientific development of Food Processing Industries. It is proposed
to establish the Food Safety and Standards Authority of India, which
will fix food standards and regulate/monitor the manufacturing,
import, processing, distribution and sale of food, so as to ensure and
wholesome food for the people. The Food Authority will be assisted
by Scientific Committees and Panels in fixing standards and by a
Central Advisory Committee in prioritization of the work. The
enforcement of the legislation will be through the State
Commissioner for Food Safety, his officers and Panchayati
Raj/Municipal bodies."
Section 3 of the Act is the definition clause and defines 'adulterant'
'contaminant' 'food' 'food additive' 'food business' 'hazard', 'manufacture',
'sale', 'substance', 'sub-standard' and 'unsafe food' amongst other words,
which read as under:-
"(a) "adulterant" means any material which is or could be employed

for making the food unsafe or sub-standard, mis-branded or
containing extraneous matter;
(g) "contaminant" means any substance, whether or not added to
food, but which is present in such food as a result of the production
(including operations carried out in crop husbandry, animal
husbandry or veterinary medicine), manufacture, processing,
preparation, treatment, packing, packaging, transport or holding of
such food or as a result of environmental contamination and does
not include insect fragments, rodent hairs and other extraneous
matter;
(j) "food" means any substance, whether processed, partially
processed or unprocessed, which is intended for human consumption
and includes primary food, to the extent defined in clause (ZK)
genetically modified or engineered food or food containing such
ingredients, infant food, packaged drinking water, alcoholic drink,
chewing gum, and any substance, including water used into the food
during its manufacture, preparation or treatment but does not
include any animal feed, live animals unless they are prepared or
processed for placing on the market for human consumption, plants
prior to harvesting, drugs and medicinal products, cosmetics,
narcotic or psychotropic substances:
Provided that the Central Government may declare, by
notification in the Official Gazette, any other article as food
for the purposes of this Act having regards to its use,
nature, substance or quality;
(k) "food additive" means any substance not normally consumed as
a food by itself or used as a typical ingredient of the food, whether
or not it has nutritive value, the intentional addition of which to food
for a technological (including organoleptic) purpose in the
manufacture, processing, preparation, treatment, packing,
packaging, transport or holding of such food results, or may be
reasonably expected to result (directly or indirectly), in it or its by-
products becoming a component of or otherwise affecting the
characteristics of such food but does not include "contaminants" or
substances added to food for maintaining or improving nutritional
qualities;
(n) "food business" means any undertaking, whether for profit or not
and whether public or private, carrying out any of the activities
related to any stage of manufacture, processing, packaging, storage,
transportation, distribution of food, import and includes food
services, caterings services, sale of food or food ingredients;
(u) "hazard" means a biological, chemical or physical agent in, or
condition of, food with the potential to cause an adverse health
effect;
(zd) "manufacturer" means a person engaged in the business of
manufacturing any article of food for sale and includes any person
who obtains such article from another person and packs and labels it

for sale or only labels it for such purposes;
(zr) "sale" with its grammatical variations and cognate expressions,
means the sale of any article of food, whether for cash or on credit
or by way of exchange and whether by wholesale or retail, for
human consumption or use, or for analysis, and includes an
agreement for sale, an offer for sale, the exposing for sale or having
in possession for sale of any such article, and includes also an
attempt to sell any such article;
(zw) "substance" includes any natural or artificial substance or other
matter, whether it is in a solid state or in liquid form or in the form
of gas or vapour;
(zx) "sub-standard" - an article of food shall be deemed to be sub-
standard if it does not meet the specified standards but not so as to
render the article of food unsafe;
(zz) "unsafe food" means an article of food whose nature, substance
or quality is so affected as to render it injurious to health:
(i) by the article itself, or its package thereof, which is
composed, whether wholly or in part, of poisonous or
deleterious substances; or
(ii) by the article consisting, wholly or in part, of any filthy,
putrid, rotten, decomposed or diseased animal substance or
vegetable substance; or
(iii) by virtue of its unhygienic processing or the presence in
that article of any harmful substance; or
(iv) by the substitution of any inferior or cheaper substance
whether wholly or in part; or
(v) by addition of a substance directly or as an ingredient
which is not permitted; or
(vi) by the abstraction, wholly or in part, of any of its
constituents; or
(vii) by the article being so coloured, flavoured or coated,
powdered or polished, as to damage or conceal the article or
to make it appear better or of greater value than it really is;
or
(viii) by the presence of any colouring matter or
preservatives other than that specified in respect thereof; or
(ix) by the article having been infected or infested with
worms, weevils or insects; or
(x) by virtue of its being prepared, packed or kept under
insanitary conditions; or

(xi) by virtue of its being mis-branded or substandard or
food containing extraneous matter; or
(xii) by virtue of containing pesticides and other
contaminants in excess of quantities specified by
regulations."
Section 41 deals with power of search, seizure, investigation, prosecution
and procedure whereas section 42 deals with the procedure for launching
prosecution. Both the sections reads as under:-
4 1 . Power of search, seizure, investigation, prosecution and
procedure thereof - (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:
Provided that no search shall be deemed to be 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.
(2) Save as in this Act otherwise expressly provided, provisions of
the Code of Criminal Procedure, 1973 relating to search, seizure,
summon, investigation and prosecution, shall apply, as far as may
be, to all action taken by the Food Safety Officer under this Act.
4 2 . Procedure for launching prosecution - (1) The Food Safety
Officer shall be responsible for inspection of food business, drawing
samples and sending them to Food Analyst for analysis.
(2) The Food Analyst after receiving the sample from the Food Safety
Officer shall analyse the sample and send the analysis report
mentioning method of sampling and analysis within fourteen days to
Designated Officer with a copy to Commissioner of Food Safety.
(3) The Designated Officer after scrutiny of the report of Food
Analyst shall decide as to whether the contravention is punishable
with imprisonment or fine only and in the case of contravention
punishable with imprisonment, he shall send his recommendations
within fourteen days to the Commissioner of Food Safety for
sanctioning prosecution.
(4) The Commissioner of Food Safety shall, if he so deems fit
decide, within the period prescribed by the Central Government, as
per the gravity of offence, whether the matter be referred to,--
(a) a court of ordinary jurisdiction in case of offences
punishable with imprisonment for a term up to three years;
or
(b) a Special Court in case of offences punishable with

imprisonment for a term exceeding three years where such
Special Court is established and in case no Special Court is
established, such cases shall be tried by a court of ordinary
jurisdiction.
(5) The Commissioner of Food Safety shall communicate his decision
to the Designated Officer and the concerned Food Safety Officer who
shall launch prosecution before courts of ordinary jurisdiction or
Special Court, as the case may be; and such communication shall
also be sent to the purchaser if the sample was taken under section
40.
Chapter IX of the Act deals with the offences and Penalties with
regard to adulteration of food stuff, the relevant provisions of the
statute read as under:-
"48. General provisions relating to (1) A person may render
any article of food injurious to health by means of one or
more of the following operations, namely:--
(a) adding any article or substance to the food;
(b) using any article or substance as an ingredient in the
preparation of the food;
(c) abstracting any constituents from the food; or
(d) subjecting the food to any other process or treatment;
with the knowledge that it may be sold or offered for sale or
distributed for human consumption.
(2) In determining whether any food is unsafe or injurious
to health, regard shall be had to--
(a)(i) the normal conditions of use of the food by the
consumer and its handling at each stage of production,
processing and distribution,
(ii) the information provided to the consumer, including
information on the label, or other information generally
available to the consumer concerning the avoidance of
specific adverse health effects from a particular food or
category of foods not only to the probable, immediate or
short-term or long-term effects of that food on the health of
a person consuming it, but also on subsequent generations;
(iii) to the probable cumulative toxic effects;
(iv) to the particular health sensitivities of a specific
category of consumers where the food is intended for that
category of consumers; and
(v) also to the probable cumulative effect of food of
substantially the same composition on the health of a person
consuming it in ordinary quantities;

(b) the fact where the quality or purity of the article, being
primary food, has fallen below the specified standard or its
constituents are present in quantities not within the specified
limits of variability, in either case, solely due to natural
causes and beyond the control of human agency, then such
article shall not be deemed to be unsafe or sub-standard or
food containing extraneous matter.
Explanation.--For the purposes of this section, "injury",
includes any impairment, whether permanent or temporary,
and "injurious to health" shall be construed accordingly.
49. General provisions relating to penalty - While adjudging
the quantum of penalty under this Chapter, the Adjudicating
Officer or the Tribunal, as the case may be, shall have due
regard to the following:--
(a) the amount of gain or unfair advantage, wherever
quantifiable, made as a result of the contravention,
(b) the amount of loss caused or likely to cause to any
person as a result of the contravention,
(c) the repetitive nature of the contravention,
(d) whether the contravention is without his knowledge, and
(e) any other relevant factor.
50. Penalty for selling food not of the nature or substance or
quality demanded - Any person who sells to the purchaser's
prejudice any food which is not in compliance with the
provisions of this Act or the regulations made thereunder, or
of the nature or substance or quality demanded by the
purchaser, shall be liable to a penalty not exceeding two
lakh rupees.
Provided that the persons covered under sub-section (2) of
section 31, shall for such non-compliance be liable to a
penalty not exceeding twenty five thousand rupees.
51. Penalty for sub-standard food - Any person who whether
by himself or by any other person on his behalf
manufactures for sale or stores or sells or distributes or
imports any article of food for human consumption which is
sub standard, shall be liable to a penalty which may extend
to five lakh rupees;
5 2 . Penalty for misbranded food - (1) Any person who
whether by himself or by any other person on his behalf
misbranded, shall be liable to a penalty which may extend to
three lakh rupees.

(2) The Adjudicating Officer may issue a direction to the
person found guilty of an offence under this section, for
taking corrective action to rectify the mistake or such article
of food shall be destroyed.
53. Penalty for misleading advertisement - (1) Any person
who publishes, or is a party to the publication of an
advertisement, which--
(a) falsely describes any food; or
(b) is likely to mislead as to the nature or substance or
quality of any food or gives false guarantee, shall be liable
to a penalty which may extend to ten lakh rupees.
(2) In any proceeding the fact that a label or advertisement
relating to any article of food in respect of which the
contravention is alleged to have been committed contained
an accurate statement of the composition of the food shall
not preclude the court from finding that the contravention
was committed.
5 4 . Penalty for food containing extraneous matter-Any
person whether by himself or by any other person on his
behalf manufactures for sale or stores or sells or distributes
or imports any article of food for human consumption
containing extraneous matter, shall be liable to a penalty
which may extend to one lakh rupees.
55. Penalty for failure to comply with the directions of Food
Safety Officer - If a food business operator or importer
without reasonable ground, fails to comply with the
requirements of this Act or the rules or regulations or orders
issued thereunder, as directed by the Food Safety Officer, he
shall be liable to a penalty which may extend to two lakh
rupees.
5 6 . Penalty for unhygienic or unsanitary processing or
manufacturing of food - Any person who, whether by himself
or by any other person on his behalf, manufactures or
processes any article of food for human consumption under
unhygienic or unsanitary conditions, shall be liable to a
penalty which may extend to one lakh rupees.
5 7 . Penalty for processing adulterant - (1) Subject to the
provisions of this chapter, if any person who whether by
himself or by any other person on his behalf, imports or
manufactures for sale, or stores, sells or distribute any
adulterant shall be liable--
(i) where such adulterant is not injurious to health, to a
penalty not exceeding two lakh rupees;
(ii) where such adulterant is injurious to health, to a penalty

not exceeding ten lakh rupees.
(2) In a proceeding under sub-section (1), it shall not be a
defence that the accused was holding such adulterant on
behalf of any other person.
58. Penalty for contravention for which no specific penalty is
provided - Whoever contravenes any provisions of this Act
or the rules or regulations made thereunder, for the
contravention of which no penalty has been separately
provided in this Chapter, shall be liable to a penalty which
may extend to two lakh rupees.
59. Punishment for unsafe food - Any person who, whether
by himself or by any other person on his behalf,
unsafe, shall be punishable,--
(i) where such failure or contravention does not result in
injury, with imprisonment for a term which may extend to
six months and also with fine which may extend to one lakh
rupees;
(ii) where such failure or contravention results in a non-
grievous injury, with imprisonment for a term which may
extend to one year and also with fine which may extend to
three lakh rupees;
(iii) where such failure or contravention results in a grievous
six years and also with fine which may extend to five lakh
rupees;"
Section 89 gives overriding effect of the Act over the other food related laws
and reads as under:-
"89. Overriding effect of this Act over all other food related laws -
The provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being
in force or in any instrument having effect by virtue of any law other
than this Act."
Section 97 of the Act seeks to repeal the enactment and orders specified in
the Second Schedule immediately with effect from the date on which the Act
is enacted and comes into force. It further provides that if there is any other
law for the time being in force in any State, corresponding to the Act, the
same shall, upon the commencement of the Act, stand repealed and in such
case, the provisions of Section 6 of the General Clauses Act, 1897 shall
apply.
"97. Repeal and savings - (1) With effect from such date as the
Central Government may appoint in this behalf, the enactment and
orders specified in the Second Schedule shall stand repealed:

Provided that such repeal shall not affect:--
(i) the previous operations of the enactment and orders
under repeal or anything duly done or suffered thereunder;
or
(ii) any right, privilege, obligation or liability acquired,
accrued or incurred under any of the enactment orders under
repeal; or
(iii) any penalty, forfeiture or punishment incurred in respect
of any offences committed against the enactment and orders
under repeal; or
(iv) any investigation or remedy in respect of any such
penalty, forfeiture or punishment, and any such
investigation, legal proceedings or remedy may be
instituted, continued or enforced and any such penalty,
forfeiture or punishment may be imposed, as if this Act had
not been passed:
(2) If there is any other law for the time being in force in
any State, corresponding to this Act, the same shall upon
the commencement of this Act, stand repealed and in such
case, the provisions of section 6 of the General Clauses Act,
1897 shall apply as if such provisions of the State law had
been repealed.
(3) Notwithstanding the repeal of the aforesaid enactment
and orders the licences issued under any such enactment or
order, which are in force on the date of commencement of
this Act, shall continue to be in force till the date of their
expiry for all purposes, as if they had been issued under the
provisions of this Act or the rules or regulations made
thereunder.
(4) Notwithstanding anything contained in any other law for
the time being in force, no court shall take cognizance of an
offence under the repealed Act or orders after the expiry of a
period of three years from the date of the commencement of
this Act."
Thus, after the aforesaid notification the FSSA now stands as the
only law relating to deal with the adulteration of food. Various
provisions of the Act were notified on different dates over a period of
time.
The State Government has issued the G.O. Dated 11.5.2010 directing
all Divisional Commissioners, District Magistrates, Deputy Inspector
Generals of Police, Senior Superintendent of Police and
Superintendents of Police to lodge FIR under Section 272/273 IPC in
case of adulteration of any article of food or drink. The grievance of
the petitioners that pursuant to the said Government order, the
authorities are invoking Sections 272/273 IPC without following or

applying the provisions of FSSA. Sections 272 and Section 273 read
as under:
"272. Adulteration of food or drink intended for sale:-
Whoever adulterates any article of food or drink, so as to
make such article noxious as food or drink, intending to sell
such article as food or drink, or knowing it to be likely that
the same will be sold as food or drink, shall be punished
with imprisonment of either description for a term which
may extended to six months, or with fine, which may extend
to one thousand rupees, or with both.
272. Sale of noxious food or drink:-Whoever sells, or offers
or exposes for sale, as food or drink, any article which has
been rendered or has become noxious or is in a state unfit
for food or drink, knowing or having reason to believe that
the same is noxious, or is in a state unfit for food or drink,
knowing or having reason to believe that the same is
noxious as food or drink, shall be punished with
imprisonment of either description for a term which may
extend to six months or with fine which may extend to one
thousand rupees, or with both."
Section 272 IPC, reproduced hereinabove, is attracted when a person
adulterates an article of food with the intention to sell such an article or
knowing that it is likely that the article will be sold as food or drink. In the
instant case, there is no allegation in the FIR that the petitioner-company or
its employees or agents had kept its products with the intention to sell the
same or knowing that the products are likely to be sold as food or drink or
that the said products were exposed or offered for sale. The definite stand of
the company was the articles seized were kept in the godown where even a
board "not for sale" was also hanging at the time when the search was
conducted.
At this juncture it would be relevant to mention that the Indian Penal Code is
a general Penal Code for India. Section 2 IPC deals with the punishment of
offences committed within India and provides that every person shall be
liable to punishment under this Code and not otherwise for every act or
omission contrary to the provisions thereof, of which he shall be guilty
within India. Section 5 IPC says that nothing in the Code shall affect any
provisions of any Special or local law and it reads as under:-
"5. Certain laws not to be affected by this Act-Nothing in this Act
shall affect the provisions of any Act for punishing mutiny and
desertion of officers, soldiers, sailors or airmen in the service of the
Government of India or the provisions of any special or local law."
Thus, from perusal of provisions of Section 5 IPC, one thing is crystal clear
that nothing in the Penal Code shall affect any provisions of any Special Act
and when for any act or omission in a particular subject, a special set of
rules have been framed, in that situation, the provisions of the IPC have to
be ignored or overlooked. In the cases at hand FIRs have been registered
under sections 272 and 273 IPC pursuant to the impugned Government Order

although adulteration of Food Stuff is covered by a Special Act i.e. The Food
Safety and Standards Act, 2006.
It is pertinent to add that the PFA Act was enacted for the prevention of
adulteration of food, being a special Act, it eclipsed sections 272 and 273 of
IPC. In other words, the said Act made sections 272 and 273 of IPC
redundant as punishment provided under the PFA Act was much more
stringent than what was provided under Sections 272 and 273 IPC.
In North East Pure Drinks Pvt. Ltd. vs. State of Assam(Criminal Petition No.
300 of 2007), on which reliance has been placed by the petitioners' Counsel,
the Gauhati High Court after examining the gravity of the charge under
Section 272 IPC held as under:-
"Thus apart, even if one presumes that the seized products had been
rendered noxious or were unfit for human consumption, the fact
remains that mere possession or storage of such articles of food or
drink would not be an offence under section 273 IPC unless one,
who is in possession of such an article of food or drink, sells the
same or offers or exposes the same for sale or knows or has reason
to believe that such article of food or drink would be sold or offered
or would be exposed for sale."
In Jatinder Kumar Jain vs. State of Punjab; 2008 (2) FAC 437, on which
reliance has been placed by the Counsel for the petitioners, the Punjab and
Haryana High Court held in paragraph 3 as under:-
"Ground for quashing, put forward on behalf of the petitioner, is that
for the offence of food adulteration, procedure is prescribed under
sections 10 and 11 of the PFA Act, for taking a sample and for
getting the same tested. Separate procedure for trial has also been
prescribed. In these circumstances, registering of FIR without
following the procedure laid down in the special statute is not
permissible in law."
The Punjab and Haryana High Court in the case of Jatinder Kumar Jain held
that registering of FIR without following the procedure laid down in the
special statute is not permissible in law. In Jeewan Kumar Raut [supra] the
question before the Apex Court was regarding applicability of sub-section (2)
of Section 167 of the Code of Criminal Procedure, 1973 in a case where
cognizance has been taken under Section 22 of the Transplantation of Human
Organs Act, 1994 (TOHO) on a complaint filed by the CBI. The Apex Court
after examining the matter in detail hold that TOHO being a special Act and
the matter relating to dealing with offences thereunder having been regulated
by reason of the provisions thereof, there cannot be any manner of doubt
whatsoever that the same shall prevail over the provisions of the Code. It
also held in unequivocal terms that if a Special statute lays down procedures,
the ones laid down under the general statutes shall not be followed. In the
case of Jamiruddin Ansari [supra], the Apex Court reiterated its earlier view
and held that provisions of MCOCA would have an overriding effect over the
provisions of the Criminal Procedure Code. For the reasons aforesaid, we are
of the view that the Union of India is not a necessary party and that too
when there is no ambiguity in the notification dated 29th July, 2010.

As regard the assertion of the State Counsel that the recovered article i.e.
cold drink is not a "Food" and as such the provisions of FSSA would not be
applicable, we would like first to recapitulate the definition of word "Food"
and "substance" as defined under Section 3 of the Act, which reads as
under:-
"(j) "food" means any substance, whether processed, partially
processed or unprocessed, which is intended for human consumption
and includes primary food, to the extent defined in clause (ZK)
genetically modified or engineered food or food containing such
ingredients, infant food, packaged drinking water, alcoholic drink,
chewing gum, and any substance, including water used into the food
during its manufacture, preparation or treatment but does not
include any animal feed, live animals unless they are prepared or
processed for placing on the market for human consumption, plants
prior to harvesting, drugs and medicinal products, cosmetics,
narcotic or psychotropic substances:
Provided that the Central Government may declare, by
notification in the Official Gazette, any other article as food
for the purposes of this Act having regards to its use,
nature, substance or quality;" "(zw) substance" includes any
natural or artificial substance or other matter, whether it is
in a solid state or in liquid form or in the form of gas or
vapour;
It is not the case of the State Counsel that the carbonated drinks or juice
based beverages are not intended for human consumption or that they are
not substances for the purposes of Section 3(zw). In PFA Act, standards were
prescribed for various food articles in the Appendix B. In Appendix-B,
carbonated water is defined in Entry A.01.01. By virtue of Section 98, the
rules including Appendix B has been temporarily transported to FSSA till the
regulations under the FSSA are notified. Therefore, we are unable to agree
with the arguments advanced on behalf of the State that the provisions of the
FSSA are not applicable in the instant case.
In view of the aforesaid crystal clear legal proposition and particular
provisions under the FSSA we are in agreement with the arguments advanced
by the petitioner's Counsel that for adulteration of food or misbranding, after
coming into force of the provisions of FSSA vide notification dated 29th July,
2010, the authorities can take action only under the FSSA as it postulates an
overriding effects over all other food related laws including the PFA Act. In
view of the specific provisions under the FSSA, the offences relating to
adulteration of food that are governed under the FSSA after July 29, 2010 are
to be treated as per the procedures to be followed for drawing and analysis
of samples as have been provided for. The provisions of penalties and
prosecution have also been provided therein. Therefore, before launching any
prosecution against an alleged offence of food adulteration, it is necessary
for the concerned authorities to follow the mandatory requirements as
provided under Sections 41 and 42 of the FSSA and, therefore, the police
have no authority or jurisdiction to investigate the matter under FSSA.
Section 42 empowers the Food Safety Officer for inspection of food business,
drawing samples and sending them to Food Analyst for analysis. The

Designated Officer, after scrutiny of the report of Food Analyst shall decide
as to whether the contravention is punishable with imprisonment or fine only
and in the case of contravention punishable with imprisonment, he shall send
his recommendations to the Commissioner of Food Safety for sanctioning
prosecution. Therefore, invoking Sections 272 and 273 of the Indian Penal
Code in the matter relating to adulteration of food pursuant to the impugned
government order is wholly unjustified and non est. Furthermore, it appears
that the impugned Government Order has been issued without application of
proper mind and examining the matter minutely and thus the State
Government travelled beyond the jurisdiction."
1 4 . Almost in line with the decision of this Court in the case of Shambhu Dayal
Agrawal (supra) a learned Single Judge of the Punjab and Haryana High Court in the
case of Inderpal and another v. State of Haryana, CRM.M. No. 11688 of 2011 decided
on 18th December, 2013 read as under:-
"This petition under Section 482 Cr.P.C. has been filed for quashing of FIR
No. 132 dated 20.6.2010 registered under Sections 272, 420, 34 IPC at
Police Station, Kalanaur, District Rohtak and all subsequent proceedings
arising out of the said FIR.
Heard learned counsel for the parties.
Apart from the aforesaid FIR, criminal complaint No. 336dated 30.7.2010
under Sections 7 and 16 of The Prevention of Food Adulteration Act, 1954
has been filed (Annexure P-3). The Food Inspector had taken in his
possession eight plastic drums containing about 150 litres of mixed milk.
After making necessary samples, sample was sent to the Public Analyst for
analysis, who annexed his report that the sample contains 4.0% of Milk Fat
and 5.88% of Milk solids not fat against the minimum prescribed limit of
4.5% and 8.5% respectively. The sample was found to be adulterated. The
allegations in the FIR are identical but after getting the public analyst's
report, challan was presented and charges have been framed under Sections
272/273 and 420 IPC and the petitioner is facing trial in the FIR as well as
the criminal complaint. The issue whether police can register an FIR for
offence punishable under Sections 420/269/270/271 IPC had come up for
consideration before this Court in the case of Shiv Kumar Vs. State of Punjab
2009 (1) FAC 238. In that case, ASI Bhagwan Dass on a secret information
went to the shop of the accused and purchased Paneer and the Paneer was
sent for public analysis and it was found to be adulterated. FIR was
registered under Sections 420/269/270/271 Indian Penal Code and merely a
complaint No. 59 dated 3.5.2008 under Section 16 of Prevention of Food and
Adulteration Act was filed by the Food Inspector. While quashing the FIR, the
Court has observed that it was not a case that the Paneer was fake or there
was any intention on the part of the accused for cheating public. The Paneer
was found to be adulterated and therefore, complaint under Section 16 of
Prevention of Food Adulteration Act could be filed and FIR cannot be lodged.
In paragraph 8 the Court observed as under:
"So far as the fact that Paneer is fake one, there is no report to this
effect on the file. The Patna High Court in the authority in case
Satish Mishra Versus State of Bihar and others, MANU/BH/1058/2006
: 2007 (1) FAC 393 has held that when there is a special statute

under the Prevention of Food Adulteration Act, 1954 then by adding
sections of IPC, FIR cannot be launched. Keeping in view the fact
that Paneer was not found to be fake but was found to be not
conforming to the prescribed standard, the proceedings under the
Criminal Act cannot continue. So, FIR No. 305 dated 6.11.2007
under Sections 420/269/270/271 IPC, Police Station, City Samana
and further proceedings arising therefrom stand quashed."
This proposition of law could not be disputed by the learned State counsel,
however, he informs the Court that the petitioner has been appearing
regularly before the trial Court in FIR No. 132 dated 20.6.2010 registered
under Sections 272, 420, 34 Indian Penal Code but in the complaint case he
has been declared proclaimed offender on 30.11.2012.
Keeping in view the fact that for selling substandard milk, the petitioner was
not required to face two criminal proceedings, therefore, FIR No. 132 dated
20.6.2010 registered under Sections 272, 420, 34 IPC at Police Station,
Kalanaur, District Rohtak is being quashed qua the petitioners. The petitioner
shall be at liberty to appear before the trial Court within one month and he
shall be released on bail on furnishing bail bonds to the satisfaction of trial
court."
1 5 . In the case of Md. Mahmood and Others v. The State of A.P.,
MANU/AP/0571/2006 : 2006 CRI L.J. 3470, N.V. RAMANA, J. (as has lordship then
was) considered almost an identical issue. I may quote the relevant observations:-
"6. Under the scheme of the Prevention of Food Adulteration Act, 1954, the
power to inspect, seize, arrest and investigate the cases falling under the
prevention of Food Adulteration Act, 1954, is vested exclusively in the Food
Inspector, appointed for a local area, in whose jurisdiction the offence is
committed. The powers of the Food Inspector, appointed under Section 9,
are enumerated in Section 10 of the Prevention of Food Adulteration Act,
1954, which inter alia include to take samples of any article of food from any
person selling article, conveying, delivering or preparing to deliver such
article to a purchaser or consignee, to send such sample for public analyst
for the local area within which such sample has been taken with the previous
approval of the local (health) authority having jurisdiction in the local area
concerned or with the previous approval of the Food (Health) Authority, to
prohibit the sale of any article of food in the interest of public health.
7 . In the interest of public health, the Government vide orders issued in
G.O.Ms. No. 44, Health, Medical and Family Welfare (LT) Department, dated
19-2-2002, has prohibited the sale of pan masala with any emblem of
Gutkha. For enforcement of the prohibition of Gutkha in the State of Andhra
Pradesh, the Directorate of Institute of Preventive Medicine, Public Health
Labs and Food (Health) Administration. Andhra Pradesh, Hyderabad, has
issued Circular Memorandum No. 4709/F1/2001, dated 20-2-2002, to the
effect that the Food (Health) Administration, enforcement officials shall
conduct raids with the support of the Police and officials of Vigilance and
Enforcement Department and seize such products from retail and wholesale
outlets and manufacturing units in Andhra Pradesh.
8. Gutkha being a food item, under the provisions of the Prevention of Food

Adulteration Act, 1954, it is only the Food Inspector, who is empowered to
seize, arrest and investigate the case. The sale of Gutkha in the State of
Andhra Pradesh has been prohibited by the Government. As per the orders
issued by the Directorate of Institute of Preventive Medicine, Public Health
Labs and Food (Health) Administration, Andhra Pradesh, Hyderabad, in
Circular Memorandum, dated 20-2-2002, the raids in relation to sale of
Gutkha, shall be conducted by the Food (Health) Administration Enforcement
Officials with the support of the Police and Officials of the Vigilance and
Enforcement Department and seize such products from retail and wholesale
outlets and manufacturing units in Andhra Pradesh. In the instant case,
except the local police, none of the Enforcement Officials from the Food
(Health) Administration, were involved in the seizure, arrest and
investigation of the case.
9 . Having regard to the fact that the Prevention of Food Adulteration Act,
1954 vests the power to seize, arrest and investigate the case in the Food
Inspector, and having regard to the Circular Memorandum, which requires
conducting of raids by the Food (Health) Administration Enforcement
Officials, for enforcing the ban on Gutkha, with the support of Police and
Officials of Vigilance and Enforcement Department, the entire exercise of
seizure of Gutkha, arrest of accused and investigation of case, done by the
local police, is without jurisdiction and the proceedings initiated in pursuance
thereof on the file of VI Metropolitan Magistrate, Hyderabad in C.C. No. 677
of 2002 against the petitioners, are liable to be quashed."
16. The learned Single Judge of the Patna High Court in the case of Satish Mishra v.
State of Bihar and others, Cri. W.P.C. No. 829 of 2005 dealt with the same issue like
one on hand. I may quote the observations of the learned Single Judge as under:-
"3. On behalf of the petitioner it is submitted that he was manufacturing
protein food supplements under licence duly issued by the Food Controller
under the Provisions of Prevention of Food Adulteration Act. His premises
were unauthorisedly and illegally searched by the Sub-Inspector of Police,
Sultanganj Police Station, which led to the institution of the present case on
the allegation that the petitioner was found manufacturing drugs without
proper licence and/or authorisation. As the petitioner was manufacturing
food articles for which they had licence, it was alleged that provisions of
Prevention of Food Adulteration Act was also violated.
4 . As the petitioner had intended to cheat or mislead the people various
provisions of Indian Penal Code were added, thus the police usurped
jurisdiction to lodge an FIR and investigate the case. It is the correctness of
this action of the police that is in question.
5 . Having heard counsel for the parties; in my view, Prevention of Food
Adulteration Act is a complete Code in itself with regard to manufacture, sale
of food articles and contravention in respect thereof. It has its own set of
authorities, which are authorised to conduct investigation, search, seizure
and/or launch prosecution in respect thereof including enquiry into the
matter. Same is the provision of Drugs and Cosmetic Act. Both are special
statutes making out special statues making out special offence and providing
for its enquiry and prosecution.

6. In that view of the matter, in view of the provision of Section 4(2) Cr.P.C.,
the procedure as prescribed in these special statute will have to be followed
in derogation to the procedure, as prescribed under Cr.P.C. Special
authorities have been conferred on special officers under the two acts, which
authorities are not on the police officer. The action of the police is wholly
without jurisdiction, in all aspect of the matter. Merely by writing Section
420 and other Sections of IPC the police cannot make out an offence where
there is none, in fact, in terms of those sections and intendment to cheat and
intendment to commit criminal breach of trust is not enough to be an offence
under IPC and preparation to commit an attempt to make offence is not
punishable under IPC.
7 . In the case of Malkiat Singh v. State of Punjab the Apex Court has held
that as a matter of law a preparation for committing an offence is different
from attempt to commit an offence.
8. Considering all aspect of the matter I find that if what the police alleges is
violation of Drugs and Cosmetic Act, then it is only Inspector of Drugs who
had the authority to inspect, search, seizure or institution of prosecution. If
they allege that the provision of Prevention of Food Adulteration Act is
violated then it was the authority of the Food Inspector alone and not the
police officer to inspect, seizure or ceased. So far as the offences alleged
under IPC are concerned none is made out on the facts of the case.
9. In this connection I may refer to an earlier judgment of this court in the
case of Hindustan Lever Ltd. v. State of Bihar & Ors. which has been
followed in subsequent decision by this Court.
10. In that view of the matter, the present prosecution as initiated on the
basis of the FIR aforesaid and all subsequent acts thereunder are held to be
wholly without jurisdiction and are quashed."
1 7 . Let me at this stage look into the provisions of the Prevention of Food
Adulteration Act, 1954 the statement of objects and reasons reads as under:-
"Laws existed in a number of States in India for the prevention of
adulteration of foodstuffs, but they lacked uniformity having been passed at
different times without mutual consultation between States. The need for
Central legislation for the whole country in this matter has been felt since
1937 when a Committee appointed by the Central Advisory Board of Health
recommended this step. 'Adulteration of food-stuffs and other goods' is now
included in the Concurrent List (III) in the Constitution of India. It has,
therefore, become possible for the Central Government to enact an all India
legislation on this subject. The bill replaces all local food adulteration laws
where they exist and also applies to those States where there are no local
laws on the subject. Among others, it provides for-
(i) a Central Food Laboratory to which food samples can be referred
to for final opinion in disputed cases (clause 4),
(ii) a Central Committee for Food Standards consisting of
representatives of Central and State Government to advise on
matters arising from the administration of the Act (clause 3), and

(iii) the vesting in the Central Government of the rule making power
regarding standards of quality for the articles of food and certain
other matters (clause 22)."
18. Section 20 provides for cognizance of trial of offences. It reads as under:-
"(1) No prosecution for an offence under this Act, not being an offence under
Section 14 or section 14A shall be instituted except by, or with the written
consent of, the Central Government or the State Government or a person
authorized in this behalf, by general or special order, by the Central
Government or the State Government. Provided that a prosecution for an
offence under this Act may be instituted by a purchaser or recognized
consumer association referred to in section 12, if he or it produces in court a
copy of the report of the public analyst along-with the complaint.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence under this Act.
(3) Notwithstanding anything contained in the Code of Criminal Procedure,
1973, an offence punishable under sub-section (1AA) of section 16 shall be
cognizable and non-bailable."
1 9 . Unlike Section 89 of the Food Safety and Standards Act, 2006 there is no
provision in the Prevention of Food Adulteration Act, 1954 given an overriding effect
over all other food related laws.
20. At this stage, let me now look into the decision of the Kerala High Court in the
case of Abdul Khader (supra). The Kerala High Court was dealing with a matter
arising from the Food Safety and Standards Act. The Court was called upon to decide
almost identical issue like the one on hand. In the said case, the accused persons
were charged for the offence punishable under Sections 273, 328 read with Section
34 of the IPC and Section 59(iii) of the Food Safety and Standards Act.
2 1 . The accused therein were running a restaurant by name "Salwa Cafe". The
allegation was that on 10.07.2012 the second accused prepared the food article by
name "Shavarma", which was injurious to health and that was sold to several
persons, who developed complications and that, around 10 persons had to be
admitted in the different hospitals in Thiruvananthapuram. It was alleged that a
person by name Sachin Mathew Roy, aged 21 years also purchased and consumed
'Shavarma' from the restaurant of the accused persons and he also developed serious
gastro problem, which resulted in his death at Bangalore.
22. The Police registered the offence accordingly. It was argued on behalf of the
accused persons therein that after the coming into force the Food Safety and
Standards Act, the general provisions in the IPC regarding the same subject matter is
impliedly repealed and they cannot be dealt with under both the enactment. It was
also argued that different procedure and different punishment have been provided
under the Act, 2006 and severe punishment has been provided for selling unsafe food
causing death and the Act 2006 had repealed the prevention of Food Adulteration Act,
1954 and taken care of all type of offences relating to the sale of food and
consequences and ensued on account of sale of such food. It was argued that under
such circumstances the accused persons could not have been proceeded against
under two enactments and accordingly it was prayed that the proceedings be
quashed.

23. The learned single Judge while rejecting such arguments observed and held as
under:-
"14. Section 3(zz) of the Act defines "unsafe food" which reads as follows:
Section 3(zz) "Unsafe food" means an article of food whose nature,
substance or quality is so affected as to render it injurious to health:
(i) by the article itself, or its package thereof, which is
composed, whether wholly or in part, of poisonous or
deleterious substances; or
(ii) by the article consisting, wholly or in part, of any filthy,
putrid, rotten, decomposed or diseased animal substance or
vegetable substance; or
(iii) by virtue of its unhygienic processing or the presence in
that article of any harmful substance; or
(iv) by the substitution of any inferior or cheaper substance
whether wholly or in part; or
(v) by addition of a substance directly or as an ingredient
which is not permitted; or
(vi) by the abstraction, wholly or in part, of any of its
constituents; or
(vii) by the article being so coloured, flavoured or coated,
powdered or polished, as to damage or conceal the article or
to make it appear better or of greater value than it really is;
or
(viii) by the presence of any colouring matter or
preservatives other than that specified in respect thereof; or
(ix) by the article having been infected or infested with
worms, weevils or insects; or
(x) by virtue of its being prepared, packed or kept under
insanitary conditions; or
(xi) by virtue of its being mis-branded or substandard or
food containing extraneous matter; or
(xii) by virtue of containing pesticides and other
contaminants in excess of quantities specified by
regulations".
1 5 . Section 59 of the Act deals with punishment for unsafe food, which
reads as follows:
5 9 . Punishment for unsafe food:- Any person who, whether by
himself or by any other person on his behalf, manufactures for sale
or stores or sells or distributes or imports any article of food for

human consumption which is unsafe, shall be punishable:-
(i) where such failure or contravention does not result in
six months and also with fine which may extend to one lakh
rupees;
(ii) where such failure or contravention results in a non-
grievous injury, with imprisonment for a term which may
extend to one year and also with fine which may extend to
three lakh rupees;
(iii) where such failure or contravention results in a grievous
six years and also with fine which may extend to five lakh
rupees;
(iv) where such failure or contravention results in death,
with imprisonment for a term which shall not be less than
seven years but which may extend to imprisonment for life
and also with fine which shall not be less than ten lakh
rupees.
16. Section 89 of the Act giving overriding effect of this Act over all other
food related laws which reads as follows:
Section 89 overriding effect of this Act over all other food related
laws:- The provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in any other law for the
time being in force or in any instrument having effect by virtue of
any law other than this Act.
17. Section 97 deals with Repeal and savings which reads as follows:
9 7 . Repeal and savings:- (1) With effect from such date as the
Central Government may appoint in this behalf, the enactment and
orders specified in the Second Schedule shall stand repealed:
Provided that such repeal shall not affect:-
(i) the previous operations of the enactment and orders
under repeal or anything duly done or suffered thereunder;
or
(ii) any right, privilege, obligation or liability acquired,
accrued or incurred under any of the enactment or Orders
under repeal; or
(iii) any penalty, forfeiture or punishment incurred in respect
of any offences committed against the enactment and Orders
under repeal; or
(iv) any investigation or remedy in respect of any such
penalty, forfeiture or punishment, and any such
investigation, legal proceedings or remedy may be

instituted, continued or enforced and any such penalty,
forfeiture or punishment may be imposed, as if this Act had
not been passed:
(2) If there is any other law for the time being in force in
any State, corresponding to this Act, the same shall upon
the commencement of this Act, stand repealed and in such
case, the provisions of section 6 of the General Clauses Act,
1897 (10 of 1897) shall apply as if such provisions of the
State law had been repealed.
(3) Notwithstanding the repeal of the aforesaid enactment
and Orders, the licences issued under any such enactment or
Order, which are in force on the date of commencement of
this Act, shall continue to be in force till the date of their
expiry for all purposes, as if they had been issued under the
provisions of this act or the rules or regulations made
thereunder.
(4) Notwithstanding anything contained in any other law for
the time being in force, no court shall take cognizance of
any offence under the repealed Act or Orders after the expiry
of a period of three years from the date of the
commencement of this Act."
1 8 . The second schedule to the Act shows the enactments which were
repealed after coming into force of this Act which do not include any of the
provisions of the Indian Penal Code which deals with the acts covered under
these provisions.
19. Chapter XIV of Indian Penal Code deals with offences affecting the public
health, safety convenience, decency and morals and sections 272 and 273
deal with sale of adulterated food or drink and noxious food or drink which
read as follows:
Section 272:- Adulteration of food or drink intended for sale:-
Whoever adulterates any article of food or drink, so as to make such
article noxious as food or drink, intending to sell such article as food
or drink, or knowing it to be likely that the same will be sold as rood
or drink, shall be punished with imprisonment or either description
for a term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.
Section 273: Sale of noxious food or drink: Whoever sells, or offers
or exposes for sale, as food or drink, any article which has been
rendered or has become noxious, or is in a state unfit for food or
drink, knowing or having reason to believe that the same is noxious
as food or drink, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both.
20. Chapter XVI of the Indian Penal Code deals with offences affecting the
human body and Section 304 deals with punishment for culpable homicide
not amounting to murder, which reads as follows:

304. Punishment for culpable homicide not amounting to murder:-
Whoever commits culpable homicide not amounting to murder shall
be punished with [imprisonment for life], or imprisonment of either
description for a term which may extend to ten years, and shall also
be liable to fine, if the act by which the death is caused is done with
the intention of causing death, or of causing such bodily injury as is
likely to cause death, or with imprisonment of either description for
a term which may extend to ten years, or with fine, or with both, if
the act is done with the knowledge that it is likely to cause death,
but without any intention to cause death, or to cause such bodily
injury as is likely to cause death.
21. Section 6 of the General Clauses Act deals with the effect of repeal of Act
making textual amendment in Act or Regulation which reads as follows:
6 . Effect of repeal:- Where this Act, or any [Central Act} or
Regulation made after the commencement of this Act repeals any
enactment hitherto made or hereafter to be made, then, unless a
different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at
which the repeal takes effect; or
(b) affect the previous operation of any enactment so
repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired,
accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in
respect of any offence committed against any enactment so
repealed; or
(e) affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid, and any such
investigation, legal proceeding or remedy may be instituted,
continued or enforced, and any such penalty, forfeiture or
punishment may be imposed as if the repealing Act or
Regulation had not been passed"
2 2 . Section 26 of the General Clauses Act deals with provisions as to
offences punishable under Section of two or more enactments, which reads
as follows:
2 6 . Provision as to offences punishable under two or more
enactments:- Where an act or omission constitutes an offence under
two or more enactments, then the offender shall be liable to be
prosecuted and punished under either or any of those enactments,
but shall not be liable to be punished twice for the same offence.
It is clear from the above that though certain provisions of the Indian Penal
Code and Food Safety and Standards Act overlap on the same subject, it will
have to be considered as to whether a person committed the offence can be

proceeded against, if the act complained of may be an offence under two
enactments, independently will depend upon as to whether the offences
alleged are distinct and different or the same and by virtue of the special Act
being enacted on the subject matter whether general provisions will be
impliedly repealed etc and those things have to be considered on facts of
each case.
23. It is true that if there is any provision made covering a particular offence
in respect of which there is a general law and a special law was enacted
subsequent to the general law, then normally the special law will prevail over
the same and even if there no specific exclusion, if from the circumstances, it
can be revealed that it is impliedly repealed, then the provisions in the
special law will prevail over that subject matter.
24. In the unreported decision in Writ Petition No. 8254 (MB) of 2010 M/s.
Pepsico India Holdings (Pvt.) Limited and another v. State of U.P. and others,
the High Court of Judicature at Allahabad, Lucknow Bench considered the
question as to whether the provisions of the Food Safety Act has impliedly
repealed the offences under sections 272 and 273 of the Indian Penal Code
which deals with sale of adulterated food or drink or noxious food or drink
and held in the affirmative and held that a person cannot be prosecuted
under both enactments separately or only under the latter Act namely Food
Safety and Standards Act.
25. In the decision reported in Jeevan Kumar Raut & Anr. v. Central Bureau
of Investigation (MANU/SC/1153/2009 : AIR 2009 SC 2763) the Hon'ble
Supreme Court has held that by virtue of section 22 of Transplantation of
Human Organ Act where a particular procedure has been given for dealing
with offences under that Act, the general provisions regarding the
investigation as provided under the Code of Criminal Procedure will not be
applicable as it will have a overriding effect over the general procedure
provided under the Criminal Procedure Code regarding investigation. In
paragraph 19 of the decision, the Hon'ble Supreme Court has observed as
follows:
"19. Section 22 of TOHO prohibits taking of cognizance except on a
complaint made by an appropriate authority or the person who had
made a complaint earlier to it as laid down therein. Respondent,
although, has all the powers of an investigating agency, it expressly
has been statutorily prohibited from filing a police report. It could
file a complaint petition only as an appropriate authority so as to
comply with the requirements contained in Section 22 of TOHO. If by
reason of the provisions of TOHO, filing of a police report by
necessary implication is necessarily forbidden, the question of its
submitting a report in terms of sub-section (2) of Section 173 of the
Code did not and could not arise. In other words, if no police report
could be filed, sub-section (2) of Section 167 of the Code was not
attracted."
26. In paragraph 29 of the same judgment it has been further observed as
follows:
"In this case however, the respondent has not specifically been

empowered both under the 1946 Act as also under the Code to carry
out investigation and file charge sheet as is precluded from doing so
only by reason of section 22 of Transplantation of Human Organs
Act. It is doubtful as to whether in the event of authorization of
officer of the department to carry out investigation on a complaint
made by the third party he would be entitled to arrest the accused
and carry on investigation as if he is a police officer he hope that
parliament would take appropriate measure to suitably amend the
law in the near future".
2 7 . In the decision reported in Jamiruddin Ansari v. Central Bureau of
Investigation (MANU/SC/0924/2009 : 2009 (6) SCC 316), while construing
the provisions of Maharashtra Control of Organised Crime Act, 1999
(hereinafter referred to as MCOCA), the Hon'ble Supreme Court has held
that:
"Although the special judge is entitled to take cognizance of the
offences under MCOCA even on a private complaint, but, after due
compliance with either of a private nature or on a police report.
Hence, on receipt of a private complaint, Special Judge has to
forward the same to the officer indicated in section 23(1)(a) to have
an inquiry conducted into the complaint by a police officer
mentioned in section 23(1)(b). It is only thereafter that Special
Judge can take cognizance of the offence complained of, if sanction
is accorded to the special court to cognizance of such offence under
section 23(2). Special Judge cannot invoke provisions of section
156(3) Cr.P.C. to order a special inquiry on such private complaint
and take cognizance thereupon, without traversing the route
indicated in S. 23. It is also observed therein that section 9 cannot
be read or invoked independent of S. 23 and both these provisions
must be read harmoniously.
28. In the decision reported in State of M.P. v. Kedia Leather and Liquor Ltd.
and others (MANU/SC/0625/2003 : 2003 (7) SCC 389), the Hon'ble Supreme
Court had considered the effect of section 133 of the Code of Criminal
Procedure and the provisions of Water (Prevention and Control of Pollution)
Act, 1974 (Chapter 5 and sections 32 and 33) and Air (Prevention and
Control of Pollution) Act, 1981 (Chapter IV and sections 18, 20 & 22 A and
considered the question as to whether by virtue of the above provisions
under the above said Acts, Section 133 of the Code of Criminal Procedure is
impliedly repealed and the Supreme Court has held that as section 133 of the
Code and the two acts were mutually exclusive and there was no impediment
to their existence side by side two acts did not impliedly overrule section 133
of the Code. While considering the provisions, the Supreme Court has
observed as follows:
"There is presumption against a repeal by implication; and the
reason of this rule is based on the theory that the legislature while
enacting a law has complete knowledge of the existing laws on the
same subject-matter, and therefore, when it does not provide a
repealing provision, the intention is clear not to repeal the existing
legislation. When the new Act contains a repealing section
mentioning the Acts which expressly repeals, the presumption

against implied repeal of other laws is further strengthened on the
principle expressio unius (persone vel rei) est exclusio alterius (The
express intention of one person or thing is the exclusion of another).
The continuance of the existing legislation, in the absence of an
express provision of repeal by implication lies on the party asserting
the same. The presumption is, however, rebutted and a repeal is
inferred by necessary implication when the provisions of the later Act
are so inconsistent with or repugnant to the provisions of the earlier
Act that the two cannot stand together. But, if the two can be read
together and some application can be made of the words in the
earlier Act, a repeal will not be inferred.
The necessary questions to be asked are:
(1) Whether there is direct conflict between the two
provisions.
(2). Whether the legislature intended to lay down an
exhaustive Code in respect of the subject-matter replacing
the earlier law.
(3) Whether the two laws occupy the same field. When the
court applies the doctrine, it does no more than give effect
to the intention of the legislature by examining the scope
and the object of the two enactments and by a comparison
of their provisions. The matter in each case is one of the
construction and comparison of the two statutes. The court
leans against implying a repeal. To determine whether a
later statute repeals by implication an earlier statute, it is
necessary to scrutinize the terms and consider the true
meaning and effect of the earlier Act. Until this is done, it is
impossible to ascertain whether any inconsistency exists
between the two enactments."
29. The Constitution Bench of the Supreme Court in Deep Chand v. State of
U.P. (MANU/SC/0023/1959 : AIR 1959 SC 648) considered the question of
repugnance between two statutes and how this will have to be considered as
follows:
"Repugnancy between two statutes may be ascertained on the basis
of the following three principles:
(1) Whether there is direct conflict between the two
provisions;
(2) Whether Parliament intended to lay down an exhaustive
code in respect of the subject-matter replacing the Act of the
State Legislature; and
(3) Whether the law made by Parliament and the law made
by the State Legislature occupy the same field."
30. The same view has been reiterated in the decision reported in Tansukh
Rai Jain v. Nilratan Prasad Shaw and others (MANU/SC/0224/1964 : AIR

1966 SC 1780). Further in the decision reported in Municipal Corporation of
Delhi v. Shiv Shanker (AIR Crl.M.C. No. 1266 of MANU/SC/0148/1971 : 2013
1971 SC 815) while considering the question as to whether the provisions of
the Essential Commodities Act or Fruit Products Order made thereunder can
impliedly repealed Prevention of Food Adulteration Act and observed as
follows:
"The object and purpose of the Adulteration Act is to eliminate the
danger to human life and health from the sale of unwholesome
articles of food. The Essential Commodities Act on the other hand
has for its object the control of the production, supply and
distribution of, and trade and commerce in, essential commodities.
In spite of this difference the two provisions may have conterminous
fields of operation. The provisions of the Adulteration Act and of the
Fruit Order are supplementary and cumulative in their operation and
they can stand together. If the Adulteration Act or Rules impose
some restrictions on the manufacturer, dealer and seller of vinegar
then they have to comply with them irrespective of the fact that the
Fruit Order imposes lesser number of restrictions in respect of these
matters. The Parliament did not intend by enacting the Essential
Commodities Act or the Fruit Order to impliedly repeal the provisions
of the Adulteration Act and the Rules in respect of the vinegar. Both
the statures can function with full vigour side by side in their own
parallel channels. Even if they happen to some extent to overlap,
Section 26 of the General Clauses Act fully protects the guilty parties
against double jeopardy or double penalty. Both the Adulteration Act
and the Essential commodities Act have been amended from time to
time after their enactment. The subsequent amendments of the
Adulteration Act and of the Essential Commodities Act by the
Parliament and the amendment of the Adulteration rules would also
tend to negative any legislative intendment of implied repeal of the
Adulteration Act by the Essential Commodities Act or the Fruit
Order."
31. In the decision reported in Zaverbhai Amaidas v. The State of Bombay
(MANU/SC/0040/1954 : 1955 SCR 799) it has been observed that if there is
conflict between the Central enactment and the State enactment on the same
subject, then Central enactment will prevail. The same principle has been laid
down in the decision reported in the Dharangadhra Chemical works v.
Dharangadhra Municipality and another (MANU/SC/0252/1985 : AIR 1985 SC
1729). In the decision reported in State of Bihar v. Murad Ali Khan and
others (MANU/SC/0130/1957 : AIR 1957 SC 458 : 1957 KHC 608), the
Hon'ble Supreme Court has considered the question as to whether Sections 5
and 6 of Prevention of Corruption Act has impliedly repealed, Section 405
and 409 of the Indian Penal Code dealing with misappropriation by a public
servant and observed that if he two offences are distinct and separate, then
one will not repeal the another. The same view has been reiterated in the
decision reported in State of Bombay v. S.L. Apte (MANU/SC/0077/1960 :
AIR 1961 SC 578 : 1961 KHC 537) wherein the question as to whether the
provisions of Insurance Act and the offence under Section 105 of the
Insurance Act and section 409 of the Indian Penal Code are similar and
proceedings against a person under both the acts will amount to double
jeopardy under Article 20(2) of the Constitution of India and Hon'ble

Supreme Court has held that they are distinct and separate and one will not
override the other and proceedings against the person under both the
enactments will not amount to double jeopardy under Article 20(2) of the
Constitution of India. Further in the decision reported in State of Bihar v.
Murad Ali Khan and others (MANU/SC/0470/1988 : AIR 1989 SC 1 : 1988
KHC 1071), the Hon'ble Supreme Court has considered the question as to
whether the offences under the Wild Life (Protection) Act, 1972 dealing with
section 9(1) and Section 51 regarding wild life and section 429 of the Indian
Penal Code will be mutually exclusive and whether the earlier Act will
override the general provisions of the Indian Penal Code deals with the same
subject matter observed that they are distinct and separate and that cannot
be quashed under section 482 of the Code. With this principles in mind the
case in hand has to be considered.
3 2 . Further in the decision reported in Vishal Agarwal and another v.
Chhattisgarh State Electricity Board and another (2014 (1) KHC 319), the
Hon'ble Supreme Court has held that Section 151 of Electricity Act, 2003 will
not cause any fetter on the right of the police to investigate a case under the
Code of Criminal Procedure in respect of any cognizable offence has been
committed which is an offence under the provisions of the Indian Penal Code
as well.
33. The same view has been reiterated in the decisions reported in State
(NCT of Delhi) v. Sanjay, Jaysukh Bavanji Shingalia v. State of Gujarat and
another, Malabhai Shalabhai Rabari and others v. State of Gujarat and
others, Kalubhai Dulabhai Khachar v. State of Gujarat and another and
Sondabhai Hanubhai Bharwad v. State of Gujarat and another (2014 (9) SCC
772), where it has been observed that provisions under the Mines and
Mineral (Development and Regulation) Act, 1957 is only barring investigation
of an offence under Section 4(1-A) read with section 21(1) of MMDR Act and
Magistrate taking cognizance of the offence if it is an offence otherwise under
the Indian Penal Code that will not be a bar for the police to investigate and
file final report and Magistrate taking cognizance of the offence for that
offence. It is clear from the provisions of the General Clauses Act that if the
act committed is an offence under two enactments, there is nothing barring
for proceeding against them under two enactments but they cannot be
sentenced for the same separately. Further if they are distinct and different
offence, then there is no bar for imposing separate sentence as well as it will
not amount to double jeopardy as provided under Article 20(2) of the
Constitution of India.
34. It is seen from the allegations in the complaint filed by the Food Safety
Officer under the Food Safety and Standard Act that only the first petitioner
had committed the offence under that Act, as he being the licensee and
owner of the restaurant, others who are involved in the commission of the
act have not been implicated. But in the case registered by the police apart
from the first petitioner, others who are responsible for running the
restaurant and preparation of the food and sale of the same were also
implicated. The procedure to be followed, nature of evidence to be collected,
points to be proved and ingredients of the offence in both are entirely
different. One is a technical offence and other is an offence to be proved
based on evidence to be collected by the investigating agency. Even if
technical offence fails, the substantive offence investigated by the police on

the basis of materials collected will prevail over the other.
35. If the intention of the Legislature is to repeal or remove the provisions
under the Indian Penal Code also in respect of the offence relating to food,
then they ought to have deleted those provisions also as has been done in
respect of giving bribe from the Indian Penal Code when Prevention of
Corruption Act was enacted dealing with those acts. That was not done in
this case. Further the Legislature was very clear when a schedule was added,
they only repealed certain enactments which were dealing with sale and
manufacture of food earlier and not all the provisions which were dealing
with the same subject matter in the other enactments like Indian Penal Code
also. The above view is clear from the decision of the Supreme Court in State
of Bombay v. S.L. Apte (MANU/SC/0077/1960 : AIR 1961 KHC 537), Om
Prakash Gupta v. State of U.P. (MANU/SC/0130/1957 : 1957 KHC 608) and
State of Bihar v. Murad Ali Khan and others (MANU/SC/0470/1988 : 1988
KHC 1071) as well. So in view of the authoritative pronouncement of the
Supreme Court, I am with great respect disagreeing with the dictum laid
down by the Allahabad High Court in Writ Petition No. 8254(MB)/2010 M/s.
Pepsico India Holdings (Pvt.). Ltd. and another v. State of U.P. and others.
36. Further it is also seen from the court before whom the case is pending,
which was instituted on the basis of a complaint under the Food Safety and
Standard Act though higher punishment was provided that court has no
jurisdiction to award such a punishment, whereas under the police
investigation case, it will be committed to the Sessions Court and the
Sessions Court has power to award severe punishment as provided under the
Indian Penal Code. Further if it is proved by the prosecution that the persons
who are selling the food articles were aware of the consequences of the food
being sold, which is likely to cause injurious to health and even cause death,
then apart from the same being falling under the provisions of the Food
Safety and Standard Act, it will fall under the provisions of Section 304 of
the Indian Penal Code as well, which is a distinct and separate offence, for
which prosecution can be independently proceeded with by the police on the
basis of a complaint given by the affected party. So only the offence under
Section 59(3) of the Act alone can be proceeded with by the Food Safety
Officer as an empowered officer and other offences which will not fall under
that Act and persons against whom prosecution can be launched for the same
offences, who are not covered by the Food Safety and Standard Act, the only
remedy available to the affected person is to move the police for regular
investigation under the Code of Criminal Procedure and proceed against them
for the offence provided under the general law namely Indian Penal Code.
So, under the circumstances, the submission made by the counsel for the
petitioners that the police case initiated on the basis of the complaint is
barred in view of the provisions of the Food Safety and Standard Act is not
sustainable and the same is liable to be rejected and the petitioners are not
entitled to get the relief quashing Crime No. 732/2012 of Museum police
station, Thiruvananthapuram claimed in the petition and the same is liable to
be dismissed."
2 4 . Thus, the learned Single Judge of the Kerala High Court took the view that
although certain provisions of the IPC and the Act, 2006 overlap on the same subject,
yet it was necessary to consider as to whether a person committed the offence can be
proceeded against, if the act complained of may be an offence under two enactments

independently, would depend upon whether the offences alleged are distinct and
different or the same and by virtue of the special Act being enacted on the subject
matter whether the general provisions would stand impliedly repealed etc.
25. Even in a case of a provision in a particular Act beginning with a non obstante
clause ("notwithstanding anything inconsistent contained therein in any other law for
the time being in force") must be enforced and implemented by giving effect to the
provisions of the Act and by limiting the provisions of the other laws. But, it cannot
be gain-said that sometimes one may come across two or more enactments
containing a similar non obstante clause operating in the same or similar direction.
Obviously, in such cases, the Court must attempt to find out the intention of the
Legislature by examining the nature of controversy, object of the Act, proceedings
initiated, relief sought and several other relevant considerations. From the various
decisions of the Apex Court, it is clear that the Courts have applied several workable
tests. They, inter-alia, include to keep in view whether the Act is 'general' or 'special',
whether the Act is a subsequent legislation, whether there is reference to the former
law and the non obstante clause therein. The above tests are merely illustrative and
by no means they should be considered as exhaustive. It is for the Court when it is
called upon to resolve such conflict by harmoniously interpreting the provisions of
both the competing statutes and by giving effect to one over the other.
26. In the aforesaid contest I may refer to rely upon the observations of the Supreme
Court in the case of Central Bank of India v. State of Kerala and Others, reported in
MANU/SC/0306/2009 : 2009 4 SCC 94:-
"28. A non obstante clause is generally incorporated in a statute to give
overriding effect to a particular section or the statute as a whole. While
interpreting non obstante clause, the Court is required to find out the extent
to which the legislature intended to do so and the context in which the non
obstante clause is used. This rule of interpretation has been applied in
several decisions. In State of West Bengal v. Union of India, it was observed
that the Court must ascertain the intention of the legislature by directing its
attention not merely to the clauses to be construed but to the entire statute;
it must compare the clause with the other parts of the law and the setting in
which the clause to be interpreted occurs.
2 9 . In Madhav Rao Jivaji Rao Scindia v. Union of India and Anr.
Hidayatullah, C.J. observed that the non obstante clause is no doubt a very
potent clause intended to exclude every consideration arising from other
provisions of the same statute or other statute but "for that reason alone we
must determine the scope" of that provision strictly. When the section
containing the said clause does not refer to any particular provisions which it
intends to override but refers to the provisions of the statute generally, it is
not permissible to hold that it excludes the whole Act and stands all alone by
itself. A search has, therefore, to be made with a view to determining which
provision answers the description and which does not.
30. In R.S. Raghunath v. State of Karnataka and Anr., a three Judge Bench
referred to the earlier judgments in Aswinin Kumar Ghose v. Arabinda Bose,
Dominion of India v. Shrinbai A. Irani, Union of India v. G.M. Kokil,
Chandavarkar Sita Ratna Rao v. Ashalata S. Guram and observed:]
...The non-obstante clause is appended to a provision with a view to

give the enacting part of the provision an overriding effect in case of
a conflict. But the non-obstante clause need not necessarily and
always be co-extensive with the operative part so as to have the
effect of cutting done the clear terms of an enactment and if the
words of the enactment are clear and are capable of a clear
interpretation on a plain and grammatical capable of a clear
interpretation on plain and grammatical construction of the words
the non-obstante clause cannot cut down the construction and
restrict the scope of its operation. In such cases the non-obstante
clause has to be read as clarifying the whole position and must be
understood to have been incorporated in the enactment by the
legislature by way of abundant caution and not by way of limiting
the ambit and scope of the special Rules."
31. In A.G. Varadarajula v. State of Tamil Nadu, this Court relied on Aswinin
Kumar Ghose s. case. The Court while interpreting non obstante clause
contained in Section 21-A of Tamil Nadu Land Reforms (Fixation of ceiling on
Land) Act, 1961 held:
It is well settled that while dealing with a non obstante clause under
which the legislature wants to give overriding effect to a section, the
court must try to find out the extent to which the legislature had
intended to give one provision overriding effect over another
provision. Such intention of the legislature in this behalf is to be
gathered from the enacting part of the section.
In Aswini Kumar Ghose v. Arabinda Bose Patanjali Sastri, J.
observed:
The enacting part of a statute must, where it is clear, be
taken to control the non obstante clause where both cannot
be read harmoniously;"
27. Sections 272 and 273 of the IPC, reads as under:-
"Section 272:- Adulteration of food or drink intended for sale:- Whoever
adulterates any article of food or drink, so as to make such article noxious as
food or drink, intending to sell such article as food or drink, or knowing it to
be likely that the same will be sold as rood or drink, shall be punished with
imprisonment or either description for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with both.
Section 273: Sale of noxious food or drink: Whoever sells, or offers or
exposes for sale, as food or drink, any article which has been rendered or
has become noxious, or is in a state unfit for food or drink, knowing or
having reason to believe that the same is noxious as food or drink, shall be
punished with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand rupees,
or with both.
2 8 . Section 272 talks about adulteration of food or drink intended for sale and
Section 273 talks about sale of noxious food or drink.
29. The offence under Section 272, IPC has the following essentials:

(i) Selling or offering for sale as food or drink some article;
(ii) Such article must have become noxious or must be in a state unfit for
food or drink;
(iii) The sale or exposure must have been made with a knowledge or
reasonable belief that the article is noxious as food or drink.
30. To bring home a charge under Section 273, IPC the prosecution is to prove: (1)
that the accused sold or offered or exposed for sale an article of food or drink; (2)
that article of food of drink has been rendered noxious or has become unfit for food
or drink; (3) that during the sale or offering for sale or exposing for sale he knew the
article of food or drink to be noxious or has reason to believe so.
31. I am of the view that the ingredients to constitute the offence under Sections
272, 273 of the IPC viz-a-viz the offence under the Food Adulteration Act are
absolutely distinct and it is difficult to take the view that Sections 272 and 273 of the
IPC would never go together with the provisions of the Food Adulteration Act. In such
circumstances, there can be appropriate complaint filed by the Food Inspector under
the Provisions of the Food Adulteration Act and simultaneously if there is sufficient
materials the accused can be prosecuted for the offence under Sections 272 and 273
of IPC on a Police report.
3 2 . The view taken by the Kerala High Court is much more commendable and I
propose to follow the same.
33. However, so far as the case on hand is concerned, the question is whether there
is any materials on record to even prima facie indicate that the accused persons have
committed the offence under Sections 406, 420, 272 and 273 of the Indian Penal
Code. In the facts of the case none of the ingredients to constitute the offences
punishable under Sections 406, 420, 272 and 273 of the IPC are spelt out.
34. The facts before the Kerala High Court in the case of Abdul Khadar (supra) were
quite different.
35. The distinction between an offence under Section 272, IPC and offence under
Section 16(1)(a)(i) read with Section 7(i) Prevention of Food Adulteration Act, 1954
is that when sale of adulterated food or drink is punishable under the Prevention of
Food Adulteration Act, adulteration rendering it noxious with intention that it may be
sold or with knowledge that it may be sold is an offence under Section 272 IPC.
Similarly the distinction between section 273, IPC on the one hand and on offence
under Section 16(1)(a)(i) is that the sale of adulterated food simpliciter attracts
section 16(1)(a)(i) read with Section 7(i) P.F.A. Act, sale of adulterated food or
drink, the impugned adulteration rendering it noxious and the sale being made with
the knowledge that it is noxious etc. attracts section 273, IPC.
36. It may be apposite to recall Section 2(ia) Prevention of Food Adulteration Act,
1954 defining adulterated article of food runs as under:-
(ia) "adulterated"-an article of food shall be deemed to be adulterated-
(a) if the article sold by a vendor is not of the nature, substance or
quality demanded by the purchaser and is to his prejudice, or is not
of the nature, substance or quality which it purports or is

represented to be;
(b) if the article contains any other substance which affects, or if the
article is so processed as to affect, injuriously the nature, substance
or quality thereof;
(c) if any inferior or cheaper substance has been substituted wholly
or in part of the article so as to affect injuriously the nature,
substance or quality thereof;
(d) if any constituent of the article has been wholly or in part
abstracted so as to affect injuriously the nature, substance or quality
thereof;
(e) if the article had been prepared, packed or kept under insanitary
conditions whereby it has become contaminated or injurious to
health;
(f) if the article consists wholly or in part of any filthy, putrid,
rotten, decomposed or diseased animal or vegetable substance or is
insect-infected or is otherwise unfit for human consumption,;
(g) if the article is obtained from a diseased animal;
(h) if the article contains any poisonous or other ingredient which
renders it injurious to health;
(i) if the container of the article is composed, whether wholly or in
part, of any poisonous or deleterious substance which renders its
contents injurious to health;
(j) if any colouring matter other than that prescribed in respect
thereof is present in the article, or if the amounts of the prescribed
colouring matter which is present in the article are not within the
prescribed limits of variability;
(k) if the article contains any prohibited preservative or permitted
preservative in excess of the prescribed limits;
(l) if the quality or purity of the article falls below the prescribed
standard or its constituents are present in quantities not within the
prescribed limits of variability, but which renders it injurious to
health;
(m) if the quality or purity of the article falls below the prescribed
standard or its constituents are present in quantities not within the
prescribed limits of variability but which does not render it injurious
to health;
Provided that, where the quality or purity of the article,
being primary food, has fallen below the prescribed
standards or its constituents are present in quantities not
within the prescribed limits of variability, in either case,
solely due to natural causes and beyond the control of
human agency, then, such article shall not be deemed to be

adulterated within the meaning of this sub-clause.
37. The expression, "noxious" has been defined in Section 2(xv), Prevention of Food
Adulteration Act as follows:
(xv) the words "unwholesome" and "noxious" when used in relation to an
article of food mean respectively that the article in harmful to health or
repugnant to human use.
38. The word noxious appears in Rule 49, Prevention of Food Adulteration Rules,
1955.
39. Rule 49(2) Prevention of Food Adulteration Rules, 1955 lays down as one of the
conditions of sale of food or drink that no person shall use for manufacturing
preparing, or storing any food or ingredient of food intended for sale any utensil or
container which is imperfectly enamelled or imperfectly tinned or which is made of
such materials or is in such a state as to be likely to injure such food or render if
noxious.
40. Rule 49(4) further says that no utensil or container used for the manufacture or
preparation of or containing any food or ingredient of food intended for sale shall be
kept in any place in which such utensil or container is likely by reason of impure air
or dust or any offensive, noxious or deleterious gas or substance or any noxious or
injurious emanations, or exhalation, or effluvium, to be contaminated and thereby
render the food noxious.
41. These are the two places where the word "noxious" has been used in the Act and
the Rules, apart from s. 2(xv) Prevention of Food Adulteration Act referred to above.
42. So, it emerges that actual adulteration of food or drink rendering it noxious has
not been contemplated by those Rules.
43. Section 7, Prevention of Food Adulteration Act, laying down the prohibition of
manufacture, sale etc. of certain article lays down the following in Clause (v) namely
that a sale of an article of food in contravention of any provision of the Act or Rules
is prohibited. It lays down in Clause (i) further that sale of adulterated food is
prohibited.
4 4 . Section 16(1)(a) Prevention of Food Adulteration Act enacts inter-alia, that
whoever sells or distributes any article of food, sale of which is prohibited under any
provision of the Act or any rule thereunder is liable to be visited with penalty.
45. But, it may be found that Rule 49 does not prohibit actual adulteration rendering
the food or drink noxious. So, Section 7(v) of the Act and consequently, Section
16(1)(a)(i) is not attracted when the food or drink is so adulterated as to render it
noxious.
46. In this limited field Section 272, IPC has its operation.
4 7 . But, at the same time to bring home Section 272, IPC first and foremost
ingredient is that the accused must have adulterated the food or drink.
48. Section 7(i), Prevention of Food Adulteration Act reads:
"S. 7. Prohibitions of manufacture, sale etc. of certain articles of food - No

person shall, himself or by any person on his behalf, manufacture for sale or
store, sell or distribute-
(i) any adulterated food."
4 9 . So, it emerges that on proof of very first ingredient of Section 272, IPC an
accused may be brought to book under Section 16(1)(a) read with Section 7(i) of the
Act. If the prosecution prosecutes the offender for more adulteration, the matter ends
there. But the prosecution on proof of other ingredients of Section 272, IPC discussed
above can also bring the offender to justice under Section 272, IPC.
5 0 . There is no question of repeal by implication as it cannot be said that the
aforesaid provisions of the Prevention of Food Adulteration Act and Section 272
occupy entirely the same field. It is undoubtedly true that the legislature can exercise
the power of repeal by necessary implication. But it is equally settled that there is a
presumption against an implied repeal. Upon the assumption that the legislature
enacts laws with a complete knowledge of all existing laws pertaining to the same
subject, the failure to add a repealing clause indicates that the intent was not meant
to repeal existing legislation. The presumption will be rebutted if the provision of the
new Act are so inconsistent with the old one, that the two cannot stand together vide
the cases.
5 1 . An analysis of Section 272, IPC shows that to bring home an offence under
Section 272, IPC the prosecution must establish the following : (a) an article of food
or drink was adulterated by the accused. (b) this adulteration rendered the food or
drink noxious; (c) that this adulteration was intended to sell the food or drink or the
accused knew it to be likely that the adulterated and noxious food or drink would be
sold as food or drink.
52. To bring home a charge under Section 272, IPC the prosecution is to prove: (a)
that the accused adulterated a food or drink; (b) that such adulteration rendered the
food or drink noxious; (c) that during the adulteration the accused intended to sell
the said article of food or drink or knew that it was likely to be sold as pure food or
drink.
5 3 . There is nothing on record at this stage to reach to the conclusion that the
adulteration of the "Ghee" rendered the same noxious. The report of the Public
Analyst dated 16th February, 2008 is as under:-
54. The plane reading of the same indicates that the sample of "Ghee" in all respects
was found to be sub-standard and adulterated.

55. As noted above, for the offence under the Food Adulteration Act, the applicants
are independently being prosecuted pursuant to the complaint lodged by the Food
Inspector culminated in the Criminal Case No. 841 of 2008 pending in the Court of
learned Chief Judicial Magistrate, Amreli. The Criminal Case No. 841 of 2008 shall
proceed further expeditiously in accordance with law without being influenced in any
manner by any of the observations made in this judgment.
5 6 . In the course of the trial of the Criminal Case No. 841 of 2008 i.e. for the
prosecution under the prevention of Food Adulteration Act, if any, prima-facie
evidence surfaces as regards the commission of the offence punishable under
Sections 272 and 273 of the IPC, then in such circumstances, it shall be open for the
trial Court to add the charge for the offence under Sections 272 and 273 of the IPC in
exercise of its power under Section 216 of the Cr.P.C.
57. In the aforesaid context, let me refer to rely on a decision of the Supreme Court
in the case of Rajiv Kumar Gupta V. State of Maharashtra, reported in
MANU/MH/1299/2005 : 2006 Cr.L.J. 581. I may quote the observations as contained
in para-26:-
"26. The learned Counsel further contended that by invoking the provisions
of the IPC like Sections 272, 273 and 420, it amounts to exceeding heir
power and jurisdiction as the Food Adulteration Act and the said Rules made
thereunder nowhere give them such authority to launch prosecution under
the IPC. The learned Counsel is, however, unable to submit any supporting
foundation to this proposition. There is no bar under the Food Adulteration
Act and the said Rules made thereunder that the concerned authorities under
the Act have no jurisdiction and/or authority to prosecute the guilty person
for the offences under the IPC based on the same averments along with the
provisions of the special statutes. All such authorities have jurisdiction to
launch a prosecution by invoking various provisions of the IPC, along with
the special statutes."
58. So far as the Criminal Case No. 580 of 2008 pending in the Court of the learned
Chief Judicial Magistrate, Amreli arising from the First Information Report being C.R.
No. I-8 of 2008 registered with the Amreli Taluka Police Station is concerned the
same is quashed on the ground that the same is not in accordance with law.
59. At this stage it is appropriate for this Court to state that if proper investigation
would have been conducted in the right direction and in accordance with law then
probably there could have been materials on record to show that the food article was
noxious.
60. In the result, this application succeeds and is hereby allowed. The proceedings of
Criminal Case No. 580 of 2008 pending in the Court of the learned Chief Judicial
Magistrate, Amreli arising from the First Information Report being C.R. No. I-8 of
2008 is hereby quashed. Rule is made absolute.
© Manupatra Information Solutions Pvt. Ltd.

Ashokbhai Kanubhai Ravani and Ors Vs State of GujGJ201719051716183035COM694479

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MANU/GJ/0906/2017

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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