Sunday 17 May 2015

Whether police case against accused is barred in view of provisions of Food Safety and Standard Act?


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 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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