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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 9TH DAY OF DECEMBER 2014
Crl.MC.No. 1266 of 2013 ()
---------------------------
ABDUL KHADER,
Vs
THE STATE OF KERALA
Citation;2015 CRLJ(NOC) 186 kerala
Accused Nos.1 to 5 in Crime No.732/2012 of Museum
police station, Thiruvananthapuram have filed this petition to
quash the proceedings under section 482 of the Code of
Criminal Procedure.
2. It is alleged in the petition that the petitioners are
accused 1 to 5 in Crime No.732/2012 of Museum police station,
Thiruvananthapuram alleging offences under Sections 273, 328
and 34 of the Indian Penal Code read with Section 59(iii) of
the Food Safety & Standards Act. This case was registered
upon a complaint No.187/DPIN/BS/12 dated 15.7.2012 and the
crime was registered by the Sub Inspector of Police, Museum
police station. The second respondent is a police officer, who
is not a notified authority under the Food Safety and Standard
Act, which came with effect from 29.7.2010. The petitioners
are conducting a restaurant by name "Salwa Cafe' at
Vazhuthacaud junction, Thiruvananthapuram. The allegation
was that on 10.7.2012, the second accused prepared
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 were admitted in
different hospitals in Thiruvananthapuram. It is alleged that
a person by name Sachin Mathew Roy, aged 21 years, also
purchased and consumed 'Shavarma' from the restaurant of
the petitioners on 10.7.2012 and he developed serious
gastro problem, which resulted in his death at Bangalore.
It is further known that with regard to the death of Sachin
Mathew Roy, Crime No.UDR/No.52/12 under section 174 of
the Code of Criminal Procedure was registered in Kalasipalayam
police station and it is being investigated.
3. On the basis of the complaint received, Museum
police has registered Crime No.732/2012 alleging offences
under Sections 273, 328 and 34 of the Indian Penal Code
read with section 59 (iii) of the Food Safety and Standard
Act, 2006. During the course of investigation, on 18.7.2012
around 4 p.m the petitioners surrendered before the Sub
Inspector of Polcie, Museum police station and they were
arrested and produced before the Judicial First Class
Magistrate Court-III, Thiruvananthapuram on 19.7.2012 and
they were remanded to judicial custody and after 50 days of
judicial custody, the petitioners were granted bail. After
the death of Sachin Mathew Roy, the Food Safety Authority
has filed a complaint before the Judicial First Class
Magistrate Court -III, Thiruvananthapuram and it is pending
as C.C.No.231/2012 as against the first petitioner. The case
of the petitioners is that after the coming into force the Food
Safety and Standard Act, the general provisions in the Indian
Penal Code regarding the same subject matter is impliedly
repealed and they cannot be dealt with under both the
enactments. Further different procedure and different
punishment have been provided under the later Act namely
Food Safety and Standard Act, 2006 and severe punishment
has been provided for selling unsafe food causing death and
this Act has repealed the existing Prevention of Food
Adulteration Act and taken care of all type of offences
relating to sale of food and consequences ensued on account
of sale of such food. So, under the circumstances, they
cannot be proceeded against under two enactments and they
prayed for quashing the proceedings on that ground.
4. The Inspector of Police, Museum police station has
filed a statement contending as follows:
On the strength of a complaint received from one Jijesh,
a crime was registered in Museum police station as
Cr.No.732/2012 under Section 328 and 34 of the Indian Penal
Code against the petitioners. The allegation was that on
15.7.2012 a petition was received from one Jijesh complaining
that he and two other friends consumed 'Shavarma' bought
from 'Salwa Cafe', Vazhuthakad, Thiruvananthapuram on
10.7.2012 and it was infected with food poisoning. All the
three persons were admitted to Medical College Hospital and
were undergoing treatment there and requested to take action
against the hotel owner. On the strength of the petition, a
crime was registered and investigation of the above case was
also revealed the commission of offence under section 273 of
the Indian Penal Code and a report was submitted to add that
section also. It was revealed during investigation that several
persons, who consumed 'Sharvama' from the said hotel on the
fateful day were infected with food poisoning and were admitted
to several hospitals in and around Thiruvananthapuram City
and reports have come through visual media and print media
that on account of consumption of the same, several other
persons also infected by food poisoning and a death was
reported from Bangalore of one Sachin Mathew Roy who also
consumed the 'Shavarma' bought from 'Salwa Cafe'.
Investigation revealed that A1-Abdul Khader, S/o.Muhammed,
aged 50, Flat No.3A, Heaven, Pandit Colony, Kowdiar,
Kuravankonam Ward from Kalanoor Veedu, Kalannoorpuram
Desom, Bayar Village, Kasarcodu, A-2 Jaleel, aged 27, S/o.
Muhammed, H.No.A.72, Sathamangalam, Sasthamangalam
Village, from B.C House, Kurar Desom, Mangalpad Uppalam
Village, Kasacodu, A3- Rajkumar Sahu, aged 22, S/o. Muhhan
Sahu, Santhoshpur Desom, Mirgon Village, Vidanappur
District, Bangal, A4-Jenthu Sett, aged 20, S/o. Panchanan Sett,
Mijigeru Desom, Pulamon Village, Poorva Midhinapur, West
Bengal, A6- Abdul Salam, aged 42, S/o. Abdul Rehman,
Charuvilakathu Veedu, in front of Muslim Jama Ath, Karuvani,
Upaniyoor Desom, Kalliyoor Village were responsible for the
preparation and sale of the same and so they were arrested on
18.7.2012 and were remanded to judicial custody. Section 59
(iii) of Food Safety and Standard Act was added as that
offence was also committed.
5. When the death of Sachin Mathew Roy was reported
from Bangalore, Kalasipalayam police registered a case as
UDR.No.52/2012 under section 174 of the Code and inquest
was conducted and postmortem examination was conducted
and it was revealed that he also died on account of the food
poisoning due to consumption of 'Shavarma' sold from the shop
of the accused persons and on that basis, they have added
Section 304 of the Indian Penal Code also and investigation
is pending. When it was revealed that a complaint was filed by
the Food Safety and Standard Authority and that is pending as
C.C.No.231/2012 against the first petitioner and section 59
(iii) of Food Safety and Standard Act was added in that
complaint, they filed a report to delete that section from the
First Information Report. The allegation that the police has no
power to investigate the offence under this Act is not correct.
No crime was registered under the provisions of the Food
Safety and Standard Act and the petitioners were not arrested
in connection with the the offences under that Act. They are
independent and distinct offences and it was not covered by the
Special Act. Dr. G. Samuel has filed a petition along with
father of deceased Sachin Roy Mathew before Kerala State
Human Rights Commission, Thiruvananthapuram and that is
also pending consideration before the Commission as
HRMP.No.3985/2012 and HRMP.No.4007 of 2012. So according
to the respondents, the petitioners are not entitled to get the
relief of quashing the proceedings and they prayed for
dismissal of the petition.
6. The third respondent filed a statement contending as
follows:
On 12.7.2012 at about 8 p.m the Joint Food Safety
Commissioner, Sri.K. Anil Kumar, received a complaint over
phone from Mr. Shobi Thilakan that he and his family were
severely affected by food poisoning by consuming the
'Shavarma' in the evening on 10.7.2012 from the
restaurant and they were undergoing treatment at PRS
Hospital, Thiruvananthapuram. Based on the information,
Food Safety Officer, Mobile Vigilance Squad,
Thiruvananthapuram was entrusted to enquire the matter and
report. By about 8 p.m on 12.7.2012 he met Sri.Shobi
Thilakan and Dr. Rakesh of Gastroenterology Department at
the hospital, who was treating these patients and prepared
statement. It is a clear case of food poisoning and Sri. Shobi
Thilakan asserted that the 'Shavarma' he consumed was the
reason for the food poisoning and explained the course of
events as he purchased four 'shavarma' parcel by 8 p.m on
10.7.2012, went home and he and his wife and two children
ate the same by 9 p.m. By early morning, all of them started
vomiting and had Diarrhea etc. He had also informed that
Aravind, aged 14, Muhammed Ammar, aged 8, Krishnanthampi
and three other family members were also under treatment at
the PRS Hospital due to consumption of 'Shavarma'. Out of
them, Anand was in the IC Unit whose condition was critical.
Food Safety Officer, Mobile Vigilance Squad,
Thiruvananthapuram had conducted inspection in the premises
of 'Salwa Cafe' at 9.30 p.m on 12.7.2012 and found that the
hotel was running in unsanitary conditions and the proprietor
failed to produce the PFA licence or Food Safety Standard
Licence and medical fitness certificate of employees and hence
ordered to close down the hotel under oral instruction from
Commissioner of Food Safety.
7. On 13.7.2012, considering the gravity of offence, the
Commissioner of Food safety himself issued emergency
prohibition order under section 34 of the Food Safety &
Standards Act 2006. The same was affixed on the shutter of
'Salwa Cafe' running in building bearing number 15/1989. The
depositions of the injured were taken on 14.7.2012 from PRS
Hospital, Thiruvananthapuram. On 15.7.2012 there was a
flash news in visual media that one Scahin Mathew Roy
passed away at Bangalore by consuming 'Shavarma' sold from
the said restaurant. Enquiry was conducted in the matter and
depositions of all concerned were taken by the Designated
Officer and Food Safety Officer. These things revealed that
they had also taken 'shavarma' from the said restaurant on
10.7.2012 night. So it is clear from the circumstances that the
licensee of the shop had sold the unsafe 'Shavarma' and
thereby committed the offence, manufacturing and selling of
unsafe food and thereby caused death of one person and
serious injury to several persons. Sri.A.Satheeshkumar was
appointed as Food Safety Officer for the State of Kerala by
the Commissioner of Food Safety under Section 37(1) of
Food Safety and Standards Act, 2006 vide order No.D-
2143/2011/CFS dated 22.8.2011 and notified in the Kerala
Gazette No.1 dated 3.1.2012. As per section 42(5) of the
Food Safety & Standards Act, 2006, the Food Safety Officer
is empowered to launch prosecution. Before the Judicial First
Class Magistrate Court-III, Thiruvananthapuram, it was
originally taken as C.C.No.1403/2012, which was subsequently
transferred to Chief Judicial Magistrate Court,
Thiruvananthapuram where it was numbered as
C.C.No.231/2012 against the first petitioner alleging offences
under sections 3(1)(zz)(iii) and (x), 26(1), 26(2)(i),59(iii) & (iv),
31(1), 65(a) &(b), 97(3) of the Food Safety & Standard Act,
2006 read with Regulations 2.1 of the Regulations 2011 as
Annexure-R3(a). They prayed for dismissal of the application.
8. Heard both sides.
9. The counsel for the petitioners Sri. Sasthamangalam
Ajithkumar submitted that Chapter XIV of the Indian Penal
Code deals with offences affecting the public health, safety,
convenience, decency and morals and section 272 deals with
adulteration of food or drink intended for sale and section 278
deals with making atmosphere noxious to death. Section 273
deals with sale of noxious food or drink. Section 3(zz) of the
Food Safety and Standard Act, 2006 which came into effect
from 29.7.2010 defines "unsafe good" which includes all types
of foods mentioned in Section 272 and 273 of the Indian
Penal Code and Section 59 of the Act deals with punishment
which takes in case of death due to sale of unsafe good as
well. Further Section 97 of the Act deals repeal of existing
laws on this subject. So, even if, it was not specifically
mentioned that this Act repeals the provisions of the Indian
Penal Code dealing with same subject matter, they are
repealed impliedly by virtue of Section 6 of the General
Clauses Act. He had relied on the decisions reported Joseph
Kurian v. State of Kerala (1994 KHC 513), an unreported
decision of the Allahabd High Court in Writ Petition No.8254
(MB) of 2010 M/s. Pepsico India Holdings (Pvt.) Ltd. v.
State of U.P & others, C.H. Sathyanarayan v. State of
Delhi High Court in Crl.R.P.No.114/2005, Akki Veeraiah
v. State (Inspector, Special Police (1957 Crl.L.J.1078), The
Dharangadhra Chemical Works v. Dharangadhra
Municipality & another (AIR 1985 SC 1729), Zaverbhai
Amaidas v. The State of Bombay (1955 (1) SCR 799), Deep
Chand v. State of U.P (AIR 1959 SC 648), Hans Raj v.
Rattan Chand and others (AIR 1967 SC 1780), Municipal
Corporation of Delhi v. Shiv Shanker (AIR 1971 SC 815) in
support of his case.
10. On the other hand, Sri. Tom Jose Padinjarekara,
Additional Director General of Prosecutions submitted that
the cases under the Indian Penal Code and Food Safety and
Standard Act are different and distinct offences and as such
there is no bar in proceeding against the person in two
different enactments, if they fall under the definition of offences
mentioned under each Act. Under the Food Safety Act only
those who are violating the provisions of the Act will be held
responsible and not other persons involved in the process. Only
the licensee will be proceeded against for violation under the
Act. But under the Indian Penal Code, other persons, who are
involved in the manufacture, sale and otherwise connected
with the act of sale and all who were responsible for the
commission of the offence can be proceeded against. Further
the offences under the Food Safety and Standard Act is a
technical offence and if there is any flow in following the
procedure, it will ends acquittal and scope of investigation is
very less in that case, whereas offences under the Indian
Penal Code will be investigated thoroughly by the investigating
agency not only violations of the provisions of the particular
enactment but also culpable act of each person which
resulted in the ultimate cause for the injury to a person or
death ensued on account of such Act. The procedure and
nature of evidence to be collected, burden of proof etc are also
different. Further, in this case, offences were charged not only
under the Food Safety and Standard Act but also offences
under sections 272, 273, 328 and 304 of the Indian Penal
Code and when it was revealed that the case was filed by the
competent authority under the Food Safety and Standard
Act, 2006, the provisions under that Act which was
incorporated in the First Information Report has been deleted
and they are only proceeding with the offences under the
Indian Penal Code. He had relied on the decisions reported in
Om Prakash Gupta v. State of U.P.(AIR 1957 SC 458),
State of Bihar v. Murad Ali Khan and Others (AIR 1989
SC 1), and State of Bombay v. S.L. Apte (AIR 1961 SC
578) in support of his case.
11. Heard both sides. Perused the records.
12. It is an admitted fact that petitioners 1 to 5 are
conducting a restaurant by name 'Salwa Cafe' at
Vazhuthacaud in Thiruvananthapuram district and it is also an
admitted fact that a particular food item by name 'Shavarma'
was sold from that shop and several persons have purchased
and ate that food article and some of them sustained severe
stomach ailment and admitted in hospital and accordingly a
mass complaint was received by the Circle Inspector of police,
Thiruvananthapuram regarding this aspect which was
forwarded to the Museum police station, Thiruvananthapuram
district, within whose jurisdiction the restaurant was situated
and accordingly Annexure-A First Information Report was
registered as Crime No.732/2012 of Museum police station
under Section 328 read with Section 34 of the Indian Penal
Code against "Salwa Cafe" owner and others, Vazhuthacaud.
It is also in a way admitted that sale had taken place between
10.7.2012 and 16.7.2012 and several persons who had eaten
that food article suffered serious health problems. It is also in
a way admitted that a person by name Sachin Mathew Roy had
suffered stomach problem and he underwent treatment in
Bangalore hospital and later succumbed to the same.
13. It is also an admitted fact that on the basis of the
complaint given by some persons, who ate 'Shavarma'
purchased from the shop conducted by the petitioners
suffered severe stomach ailment, a crime was registered and
while that was under investigation, they got information that
one Sachin Mathew Roy, who also purchased and ate
'Shavarma' succumbed to injuries, another crime was registered
and thereafter that was also clubbed with Crime No.732/2012
after adding Section 304 of the Indian Penal Code as well. It
is also an admitted fact that on getting information regarding
the incident, the Food Safety Officer, Mobile Vigilance
Squad, Thiruvananthapuram conducted enquiry and took
steps and accordingly he had conducted enquiry and filed
complaint under section 42(5) of the Food Safety and
Standards Act, 2006 before the Judicial First Class Magistrate
Court-III, Thiruvananthapuram against the first petitioner
herein alleging offences under Sections 3(1)(zz)(iii) & (x), 26
(1), 26(2)(i), 59(iii)&(iv), 31(1), 65(a)&(b), 97(3) of the Food
Safety & Standards Act, 2006 read with Regulation 2.1 of the
Regulations 2011 and thereafter it was transferred to Chief
Judicial Magistrate Court, Thiruvananthapuram, where it is
now pending as C.C.231/2012. The Prevention of Food
Adulteration Act was repealed by the present Food Safety
and Standards Act, 2006 and it was intended to protect the
public against the selling and manufacturing of unsafe good.
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 n 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 sub-standard or food
containing extraneous matter; or
(xii) by virtue of containing pesticides and other
contaminants in excess of quantities specified by regulations".
15. Section 59 of the Act deals with punishment for
unsafe food, which reads as follows:
59. 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
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 injury, with imprisonment for a term which may
extend to 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:
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
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."
18. 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"
22. 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:
26. 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 (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".
27. In the decision reported in Jamiruddin Ansari v.
Central Bureau of Investigation (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.PC 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 (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 (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 (AIR 1966 SC 1780). Further in the decision reported
in Municipal Corporation of Delhi v. Shiv Shanker (AIR
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 (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 (AIR 1985 SC 1729). In the decision reported in
State of Bihar v. Murad Ali Khan and others (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 (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 (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.
32. 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 (AIR 1961 KHC 537), Om Praksh Gupta v.
State of U.P (1957 KHC 608) and State of Bihar v. Murad
Ali Khan and others (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.
In the result, this petition is dismissed.
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