Thursday, 20 September 2018

SC: Prosecution under IPC can be initiated in case of food safety violation

 The High Court is clearly wrong in holding that
action can be initiated against defaulters only under
Section 55 of FSS Act or proceedings under Section 68 for
adjudication have to be taken. A further error was
committed by the High Court in interpreting the scope of
Section 188 of the IPC. Section 188 of the IPC does not
only cover breach of law and order, the disobedience of
which is punishable. Section 188 is attracted even in cases
where the act complained of causes or tends to cause
danger to human life, health or safety as well. We do not
agree with the High Court that the prohibitory order of the
Commissioner, Food and Safety is not an order

contemplated under Chapter X of the IPC. We are also not
in a position to accept the findings of the High Court that
Section 55 of the FSS Act is the only provision which can be
resorted to for non compliance of orders passed under the
Act as it is a special enactment.
7. There is no bar to a trial or conviction of an offender
under two different enactments, but the bar is only to the
punishment of the offender twice for the offence. Where an
act or an omission constitutes an offence under two
enactments, the offender may be prosecuted and punished
under either or both enactments but shall not be liable to
be punished twice for the same offence. T.S. Baliah v. T.S.Rengachari – (1969) 3 SCR 65. The same set
of facts, in conceivable cases, can constitute offences
under two different laws. An act or an omission can
amount to and constitute an offence under the IPC and at
the same time, an offence under any other law.State of Bihar v. Murad Ali Khan – (1988) 4 SCC 655 The High
Court ought to have taken note of Section 26 of the General
Clauses Act, 1897 which reads as follows:
“Provisions 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.”
8. In Hat Singh’s3 case this Court discussed the doctrine
of double jeopardy and Section 26 of the General Clauses
Act to observe that prosecution under two different Acts is
permissible if the ingredients of the provisions are satisfied
on the same facts. While considering a dispute about the
prosecution of the Respondent therein for offences under
the Mines and Minerals (Development and Regulation) Act
1957 and Indian Penal Code, this Court in State (NCT of
Delhi) v. Sanjay4 held that there is no bar in prosecuting
persons under the Penal Code where the offences
committed by persons are penal and cognizable offences. A
perusal of the provisions of the FSS Act would make it clear
that there is no bar for prosecution under the IPC merely
because the provisions in the FSS Act prescribe penalties.
We, therefore, set aside the finding of the High Court on the
first point.
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1195 OF 2018

THE STATE OF MAHARASHTRA Vs SAYYED HASSAN SAYYED SUBHAN 

Dated:SEPTEMBER 20, 2018.


Leave granted.
1. First Information Reports (FIRs) were registered for
transportation and sale of Gutka/Pan Masala for offences
punishable under Sections 26 and 30 of the Food and
Safety Standards Act, 2006 (hereinafter referred to as the
‘FSS Act’) and Sections 188, 272, 273 and 328 of the Indian
Penal Code, 1860 (hereinafter referred to as the ‘IPC’). The
Respondents in the above appeals filed Criminal Writ
Petitions and Criminal Applications in the High Court of
Bombay for quashing the FIRs. The High Court quashed the
criminal proceedings against the Respondents and declared
that the Food Safety Officers can proceed against the
Respondents under the provisions of Chapter X of the FSS
Act. Aggrieved thereby, the State of Maharashtra is before
us.

2. The High Court framed two questions for
consideration. They are:
i. Whether the Food Safety Officers can lodge
complaints for offences punishable under the IPC?
ii. Whether the acts complained amounted to any
offence punishable under the provisions of the
IPC?
3. A notification was issued on 18.07.2013 by the
Commissioner, Food Safety and Drugs Administration,
Government of Maharashtra under Section 30 of the FSS
Act prohibiting manufacture, storage, distribution or sale of
tobacco, Areca nut, which is either flavored, scented or
mixed with any of the said addictives and whether going by
the name or form of gutka, pan masala, flavored, scented
tobacco, flavored/scented supari, kharra or otherwise by
whatsoever name called, whether packaged or unpackaged
and/or sold as one product, or though packaged as
separate products, sold or distributed in such a manner so
as to easily facilitate mixing by the consumer.
4. Crimes were registered pursuant to complaints filed by
the Food Safety Officers for violation of the said notification
dated 18.07.2013 against the Respondents who were either
transporting, stocking and/or selling the prohibited goods.

5. The High Court examined Section 55 of the FSS Act
which provides for penalty for non compliance of the
directions of the Food Safety Officers. As per the said
provision the failure to comply with the requirements of the
Act or the Rules or Regulations would result in a penalty
which may extend to Rs.2 lakhs. The High Court
observed that non compliance of the notification dated
18.07.2013 can be penalized only by imposing of fine
mentioned in Section 55 and not otherwise. No complaint
for offences under the IPC could have been preferred by the
Food Safety Officer for violation of the prohibitory order
issued by the Commissioner of Food Safety. The
allegations against the Respondents do not have the
tendency to cause breach of law and order, according to
the High Court. The High Court found that the notification
issued by the Commissioner dated 18.07.2013 is not an
order contemplated under Chapter X of the IPC. The High
Court was of the opinion that Section 55 of the FSS Act
being a specific provision made in a special enactment,
Section 188 of the IPC is not applicable. The High Court
concluded on the first point that any violation of the
prohibitory order can be dealt with only under Section 55 of

the FSS Act and no other action can be initiated against the
Respondents.
6. There is no dispute that Section 55 of the FSS Act
provides for penalty to be imposed for non compliance of
the requirements of the Act, Rules or Regulations or orders
issued thereunder by the Food Safety Officer. But, we are
afraid that we cannot agree with the conclusion of the High
Court that non compliance of the provisions of the Act,
Rules or Regulations or orders cannot be subject matter of
a prosecution under IPC unless expressly or impliedly
barred. The High Court is clearly wrong in holding that
action can be initiated against defaulters only under
Section 55 of FSS Act or proceedings under Section 68 for
adjudication have to be taken. A further error was
committed by the High Court in interpreting the scope of
Section 188 of the IPC. Section 188 of the IPC does not
only cover breach of law and order, the disobedience of
which is punishable. Section 188 is attracted even in cases
where the act complained of causes or tends to cause
danger to human life, health or safety as well. We do not
agree with the High Court that the prohibitory order of the
Commissioner, Food and Safety is not an order

contemplated under Chapter X of the IPC. We are also not
in a position to accept the findings of the High Court that
Section 55 of the FSS Act is the only provision which can be
resorted to for non compliance of orders passed under the
Act as it is a special enactment.
7. There is no bar to a trial or conviction of an offender
under two different enactments, but the bar is only to the
punishment of the offender twice for the offence. Where an
act or an omission constitutes an offence under two
enactments, the offender may be prosecuted and punished
under either or both enactments but shall not be liable to
be punished twice for the same offence. T.S. Baliah v. T.S.Rengachari – (1969) 3 SCR 65. The same set
of facts, in conceivable cases, can constitute offences
under two different laws. An act or an omission can
amount to and constitute an offence under the IPC and at
the same time, an offence under any other law.State of Bihar v. Murad Ali Khan – (1988) 4 SCC 655 The High
Court ought to have taken note of Section 26 of the General
Clauses Act, 1897 which reads as follows:
“Provisions 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.”
8. In Hat Singh’s3 case this Court discussed the doctrine
of double jeopardy and Section 26 of the General Clauses
Act to observe that prosecution under two different Acts is
permissible if the ingredients of the provisions are satisfied
on the same facts. While considering a dispute about the
prosecution of the Respondent therein for offences under
the Mines and Minerals (Development and Regulation) Act
1957 and Indian Penal Code, this Court in State (NCT of
Delhi) v. Sanjay4 held that there is no bar in prosecuting
persons under the Penal Code where the offences
committed by persons are penal and cognizable offences. A
perusal of the provisions of the FSS Act would make it clear
that there is no bar for prosecution under the IPC merely
because the provisions in the FSS Act prescribe penalties.
We, therefore, set aside the finding of the High Court on the
first point.
9. Regarding the second point as to whether offences
under Section 188, 272, 273 and 328 have been made out
against the Respondents, we have considered the
3 State of Rajasthan v. Hat Singh (2003) 2 SCC 152
4 (2014) 9 SCC 772

submissions made by the learned Additional Solicitor
General for the State of Maharashtra and the learned
Senior Counsel appearing for the Respondents. Without
going into details of the submissions made, we find that
points that were not argued before the High Court were
raised by both sides. We suggested to the parties that the
matters have to be considered afresh by the High Court by
permitting both sides to raise all contentions which were
canvassed before us. There was no serious objection by
both sides to the remand of the matters back to the High
Court. The only request made by the learned Senior
Counsel for the Respondents is that no coercive action
should be taken against the Respondents during the
pendency of Criminal Writ Petitions and the Criminal
Applications before the High Court.
10. We remand the matters to the High Court to consider
the Criminal Writ Petitions and Criminal Applications afresh
in respect of the second point framed i.e. whether offences
under Section 188, 272, 273 and 328 of the IPC are made
out in the FIRs which are the subject matter of the cases.
No coercive action be taken against the Respondents till the
8
disposal of the Criminal Writ Petitions and the Criminal
Applications by the High Court.
11. With the aforesaid observations, the appeals are
disposed of.
................................J
[ S.A. BOBDE ]
..................................J
[ L. NAGESWARA RAO ]
NEW DELHI;
SEPTEMBER 20, 2018.

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