Law Web: Supreme Court: Provisions of Food Safety and Standards Act Will Prevail Over Prevention of Food Adulteration Act in case of inconsistency

In this case, on the day on which the alleged offence was

committed, the offender could have been sentenced to

imprisonment under Section 16 of the PFA and under the FSSA,

he could have been directed to pay the penalty up to Rupees 3

lakhs. The punishment under PFA and the penalty under the

FSSA cannot be imposed on the violator for the same

misbranding because it will amount to double jeopardy, which

is prohibited under Article 20(2) of the Constitution of India.

Thus, when the penal action can be taken under both statutes,

the question is which will prevail. An answer to the said

question has been provided by Section 89 of the FSSA, which

reads thus:

“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.” {Para 17}

18. The effect of Section 89 is that if there is an inconsistency

between the provisions of the PFA and the FSSA, the provisions

of the FSSA will have an overriding effect over the provisions of

the PFA. When it comes to the consequences of misbranding,

the same has been provided under both the enactments, and

there is inconsistency in the enactments as regards the penal

consequences of misbranding. As pointed out earlier, one

provides for imposing only a penalty in terms of payment of

money, and the other provides imprisonment for not less than

six months. In view of the inconsistency, Section 89 of the

FSSA will operate, and provisions of the FSSA will prevail over

the provisions of the PFA to the extent to which the same are

inconsistent. Thus, in a case where after coming into force of

Section 52 of the FSSA, if an act of misbranding is committed

by anyone, which is an offence punishable under Section 16 of

PFA and which attracts penalty under Section 52 of the FSSA,

Section 52 of the FSSA will override the provisions of PFA.

Therefore, in such a situation, in view of the overriding effect

given to the provisions of the FSSA, the violator who indulges

in misbranding cannot be punished under the PFA and he will

be liable to pay penalty under the FSSA in accordance with

Section 52 thereof.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 3864 OF 2023

Manik Hiru Jhangiani Vs State of M.P.

Author: ABHAY S. OKA, J.

Citation: 2023 INSC 1078.

1. Leave granted.

FACTUAL ASPECTS

2. Various provisions of the Food Safety and Standards Act,

2006 (for short, ‘the FSSA’) were brought into force on different

dates. The Prevention of Food Adulteration Act, 1954 (for

short, ‘the PFA’) was repealed with effect from 5th August 2011,

as provided in sub-section (1) of Section 97 of the FSSA.

3. The appellant was, at the relevant time, a Director of M/s.

Bharti Retail Limited, (for short, ‘Bharti’), a company that is

engaged in the business of operating retail stores under the

name of ‘Easy Day’ having its outlets all over the country. A

Food Inspector appointed under the PFA visited a shop owned

by Bharti in Indore and purchased certain biscuit packets from

the shop. The visit was made on 29th November 2010. On the

next day, a panchnama was drawn, and the samples were sent

to the State Food Laboratory, Bhopal, for analysis and testing.

The report of the Public Analyst was received on 4th January

2011. On 4th August 2011, a notification was issued under subsection

(1) of Section 97 of the FSSA notifying 5th August 2011

as the date on which the PFA shall stand repealed. In Section

97, and in particular in sub-section (1), there is a provision that

notwithstanding the repeal of PFA, any penalty, forfeiture, or

punishment incurred in respect of any offences committed

under the PFA shall not be affected by the repeal. Moreover,

there is a sunset clause in the form of sub-section (4) of Section

97 which provides for a sunset period of three years from 5th

August 2011 for taking cognizance of the offences under the

PFA. On 11th August 2011, sanction was granted to the Food

Inspector to prosecute the Directors of Bharti under the

provisions of the PFA. The Food Inspector filed a charge sheet

on 12th August 2011, and on the same day, cognizance of the

offence was taken by the learned Judicial Magistrate, and a

bailable warrant was issued against the appellant. The

appellant filed a petition under Section 482 of the Code of

Criminal Procedure, 1973 (for short, ‘CrPC’) for challenging the

order of cognizance. By the impugned judgment, the High

Court dismissed the petition under Section 482 of CrPC. The

High Court noted that the offence alleged against the appellant

was of misbranding which had taken place prior to the repeal

of the PFA. Hence, within a period of three years from the date

of repeal, the learned Magistrate was empowered to take

cognizance in view of sub-section (4) of Section 97 of FSSA.

Being aggrieved by the said decision of the High Court, the

present appeal has been preferred.

SUBMISSIONS

4. The learned senior counsel appearing for the appellant

made detailed submissions. The learned senior counsel firstly

pointed out that Section 3 of the FSSA, which contains the

definition of ‘misbranded food’ in clause (zf) of sub-section (1)

thereof, was brought into force on 28th May 2008 and Section

52 of the FSSA, which provides for penalty for misbranding was

brought into force with effect from 29th July 2010. Secondly, he

pointed out that even Section 89 of the FSSA, which starts with

a non-obstante clause providing that the FSSA shall have

overriding effect notwithstanding anything inconsistent

contained in any other law for the time being in force, was

notified on 29th July 2010. He submitted that, therefore,

Section 52 of the FSSA, which provides for a penalty for

misbranding, would prevail over the relevant provisions of the

PFA, which make the misbranding an offence punishable with

imprisonment and a fine. He would, therefore, submit that

with effect from 29th July 2010, the FSSA will govern

misbranding and not the PFA.

5. The learned senior counsel also pointed out that the

Prevention of Food Adulteration Rules, 1955 (for short, ‘the PFA

Rules’) continued to remain in force till the repeal of the PFA.

He pointed out that corresponding rules under the FSSA,

namely, the Food Safety and Standards (Packaging and

Labelling) Regulations, 2011 came into force on 5th August

2011. He would, therefore, submit that Rule 32 of PFA dealing

with standards for labelling continued to operate till 5th August

2011. He submitted that only because the Rules corresponding

to Rule 32 of PFA Rules were not notified on the date of

commission of the offence, the appellant could not have been

prosecuted under the PFA for violation of a provision that was

eclipsed by Section 89 of FSSA. His submission is that after

29th July 2010, the regime under the PFA dealing with

misbranding will not apply.

6. He submitted that though Rule 32 of the PFA Rules, the

violation of which has been alleged along with other offences

under the PFA, was in force on the date on which the alleged

violation was committed, in view of Section 89 of FSSA, Rule

32 will have no application. Learned counsel pointed out that

Section 97 of the FSSA was brought into force with effect from

29th July 2010. He submitted that only because the Rules

corresponding to Rule 32 of the PFA Rules were not notified

under the FSSA regime, the respondent could not have

proceeded under the provisions of PFA in the light of Section

89 of the FSSA.

7. He relied upon a chart tendered across the Bar, which

contains a comparison of the provisions regarding misbranding

under both enactments. He pointed out that for violation of the

provisions regarding misbranding, under PFA, the violator

could be punished by imposing imprisonment of up to three

years. However, under the FSSA, there is a provision for a levy

of only a penalty up to Rupees 3 lakhs, as provided in Section

52. He submitted that when two statutes are operating in the

field prescribing a penalty for the same offence and when an

earlier statute contains a more stringent penalty or

punishment, the provision in the earlier statute will stand

repealed by necessary implication. He relied upon Clause (1)

of Article 20 of the Constitution of India. He relied upon

decisions of this Court in T. Barai v. Henry Ah Hoe & Anr.1

and Nemi Chand v. State of Rajasthan2. Lastly, he

submitted that the High Court committed an error by relying

upon the sunset clause under sub-section (4) of Section 97

since the same was not applicable in the facts of the case.

8. Learned counsel for the respondent- State firstly urged

that the acts or omission constituting the alleged offence took

place when the PFA was not repealed though the FSSA was

brought into force. Rule 32 of the PFA was also in force on that

date, the violation of which has been alleged by the respondent.

Learned counsel relied upon sub-section (4) of Section 97 of the

FSSA, which permits cognizance of an offence under the PFA

before the expiry of three years from the date of the

commencement of the FSSA. He would submit that considering

the principles laid down in sub-section (4) of Section 97, the

prosecution for violating the provisions of the PFA Act and the

PFA Rules will certainly be maintainable. He submitted that

1 (1983) 1 SCC 177

2 (2018) 17 SCC 448

after coming into force of the FSSA, all the provisions of PFA

and the PFA Rules continued to apply. Inviting our attention

to Section 52 of the FSSA, he submitted that even the Rules

under the FSSA were not brought into force on the date the

offence was committed. He would, therefore, support the

reasons recorded by the High Court in the impugned order. He

relied upon a decision of this Court in the case of Hindustan

Unilever Limited v. State of Madhya Pradesh3 in support of

his submissions that the criminal proceedings initiated under

the PFA before its repeal and the punishment to be imposed

under the PFA after its repeal have been protected by Section

97 of the FSSA. He would, therefore, submit that the view

taken by the High Court calls for no interference.

CONSIDERATION OF SUBMISSIONS

9. We have given careful consideration to the submissions.

The offence alleged against the appellant is under Section

2(ix)(k), read with Rule 32 of the PFA, which was made

punishable under Section 16(1)(a). In short, the allegation was

that the label on the food product of the appellant was not in

accordance with the requirements of the PFA and the Rules

framed thereunder. Therefore, the definition of ‘misbranded’

under Section 2 (ix) will apply. Clause (ix) of Section 2 of PFA

reads thus:

“(ix) “misbranded”—an article of food

shall be deemed to be misbranded—

(a) if it is an imitation of, or is a

substitute for, or resembles in a

3 (2020) 10 SCC 751

manner likely to deceive, another

article of food under the name of

which it is sold, and is not plainly and

conspicuously labelled so as to

indicate its true character;

(b) if it is falsely stated to be the

product of any place or country;

belongs to another article of food;

(d) if it is so coloured, flavoured or

coated, powdered or polished that the

fact that the article is damaged is

concealed or if the articles is made to

appear better or of greater value than

it really is;

(e) if false claims are made for it upon

the label or otherwise;

(f) if, when sold in packages which

have been sealed or prepared by or at

the instance of the manufacturer or

producer and which bear his name

and address, the contents of each

package are not conspicuously and

correctly stated on the outside

thereof within the limits of variability

prescribed under this Act;

(g) if the package containing it, or the

label on the package bears any

statement, design or device regarding

the ingredients or the substances

contained therein, which is false or

misleading in any material

particular; or if the package is

otherwise deceptive with respect to

its contents;

(h) if the package containing it or the

label on the package bears the name

of a fictitious individual or company

as the manufacturer or producer of

the article;

(i) if it purports to be, or is

represented as being, for special

dietary uses, unless its label bears

such information as may be

prescribed concerning its vitamin,

mineral, or other dietary properties in

order sufficiently to inform its

purchaser as to its value for such

uses;

(j) if it contains any artificial

flavouring, artificial colouring or

chemical preservative, without a

declaratory label stating that fact, or

in contravention of the requirements

of this Act or rules made thereunder;

(k) if it is not labelled in accordance

with the requirements of this Act or

rules made thereunder;”

10. The corresponding provision under the FSSA is clause

(zf) of Section 3 which reads thus:

“(zf) “misbranded food” means an article of

food–

(A) if it is purported, or is represented to

be, or is being–

(i) offered or promoted for sale with false,

misleading or deceptive claims either;

(a) upon the label of the package,

(b) through advertisement, or

(ii) sold by a name which belongs to

another article of food; or

(iii) offered or promoted for sale under

the name of a fictitious individual or

company as the manufacturer or

producer of the article as borne on the

package or containing the article or the

label on such package; or

(B) if the article is sold in packages which

have been sealed or prepared by or at the

instance of the manufacturer or

producer bearing his name and address

but–

(i) the article is an imitation of, or is a

substitute for, or resembles in a

manner likely to deceive, another

article of food under the name of which

it is sold, and is not plainly and

conspicuously labelled so as to

indicate its true character; or

(ii) the package containing the article

or the label on the package bears any

statement, design or device regarding

the ingredients or the substances

contained therein, which is false or

misleading in any material particular,

or if the package is otherwise deceptive

with respect to its contents; or (iii) the

article is offered for sale as the product

of any place or country which is false;

(i) contains any artificial flavouring,

colouring or chemical preservative and

the package is without a declaratory

label stating that fact or is not labelled

in accordance with the requirements

of this Act or regulations made

thereunder or is in contravention

thereof; or

(ii) is offered for sale for special dietary

uses, unless its label bears such

information as may be specified by

regulation, concerning its vitamins,

minerals or other dietary properties in

order sufficiently to inform its

purchaser as to its value for such use;

(iii) is not conspicuously or correctly

stated on the outside thereof within

the limits of variability laid down

under this Act.”

Sub-clause (A) (i) deals with food being offered or promoted for

sale with false, misleading or deceptive claims upon the

package's label.

11. Under Section 16 of PFA, penalties have been prescribed.

Under clause 1(i) of sub-section (1) of Section 16, misbranding

within the meaning of Clause (ix) of Section 2 is an offence

punishable with imprisonment for a term which may not be less

than six months, but it may extend to three years and with a

fine of the minimum amount of Rupees one thousand. The

procedure for taking cognizance is prescribed by Section 20.

12. As against this, Section 52 of FSSA provides for penalties

for misbranded food. FSSA does not prescribe any punishment

of imprisonment for misbranding, but the power under Section

52 is to impose a penalty, which may extend to Rupees 3 lakhs.

13. Thus, under the provisions of the PFA, for misbranding,

a person can be sentenced to imprisonment of a minimum six

months with a fine of Rupees one thousand and more.

However, for a similar violation under the FSSA, there is no

penal provision in the sense that there is no provision for

sentencing the violator to undergo imprisonment and to pay a

fine. Under the FSSA, only a penalty of up to Rupees 3 lakhs

can be imposed.

14. We must note here that Sections 4,5,6,7,8,9,10,87,88,91

and 101 were brought into force with effect from 15th October

2007. Section 3 of the FSSA which defines ‘misbranded food’

came into force on 28th May 2008. As noted earlier, Section 97

which provides for repeal of the PFA was brought into force on

5th August 2011. Thus, the penal provisions of the PFA were in

force till 5th August 2011. In this case, the alleged offence was

committed on 29th November 2010. Thus, on that day, Section

52 of FSSA was in force as also the provisions of the PFA and

the PFA Rules.

15. At this stage, we may refer to sub-section (4) of Section 97

of FSSA, a sunset clause. Sub-section (4) of Section 97 reads

thus:

“(4) Notwithstanding anything contained

in any other law for the time being in

force, no court shall take cognizance of

an offence under the repealed Act or

Orders after the expiry of a period of

three years from the date of the

commencement of this Act.”

16. Sub-section (4) provides that notwithstanding the repeal

of the PFA, cognizance of the offence committed under the PFA

can be taken within three years from the date of

commencement of the FSSA. The implication of sub-section (4)

of Section 97 is that if an offence is committed under the PFA

when the PFA was in force, cognizance of the crime can be taken

only within three years from the date of commencement of the

FSSA.

17. In this case, on the day on which the alleged offence was