Sunday 31 December 2023

What punishment can be given to accused for an offence of misbranding if both Prevention of food adulteration Act and food safety Act were in force at the same time?

 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.





Manik Hiru Jhangiani Vs State of M.P.

Author: ABHAY S. OKA, J.

Citation: 2023 INSC 1078.

Read full Judgment here: Click here

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