Bombay HC: Where a special statute like FSSA occupies the field with an overriding effect (Section 89 FSSA), the general law (IPC) cannot be invoked, and simultaneous prosecution under both is not permissible

 IPC sections 272, 273, and 328 cannot be invoked when the same subject matter is covered by FSSA, a special law - Section 59 of FSSA is broader than IPC Sections 272 and 273 - Where a special statute like FSSA occupies the field with an overriding effect (Section 89 FSSA), the general law (IPC) cannot be invoked, and simultaneous prosecution under both is not permissible - 

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Application (Apl) No. 1776 of 2025

Decided On: 24.04.2026

Mohammad Bilal Moammad Yakub and Ors. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Vrushali V. Joshi, J.

 Citation: 2026:BHC-NAG:6496-DB, MANU/MH/4024/2026

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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.

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.

Read full Judgment here: Click here

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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.

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Whether the Magistrate can discharge accused if complainant public servant fails to remain present in the court for prosecuting his complaint?

  From the provisions referred to above it is clear, the law does not contemplate that once a complaint is filed by a public servant, he has discharged his duty and need not remain present in the Court. As pointed out in the decision in State of M. P. v. Kalu 1973 Jab LJ 224 : 1972 Cri LJ 1639, the prosecuting agency owes a duty to the accused who is prosecuted and to the Court which is required to dispense justice according to law. In this task it is entitled to the co-operation of all concerned. Dispensation of justice is, in a sense a team work and every one is expected to play his role properly. {Para 14}

15. A perusal of the proviso to Section 200 of the Code shows that where a public servant acting or purporting to act in the discharge of his official duties filed a written complaint, the Magistrate need not examine him and his witnesses. In the instant case the learned Magistrate exercising his discretion in favour of the complainant, had straightway ordered issue of process against the accused.

16. Justice has to be done to both the contending parties. In the instant case when the complainant did not appear on the several dates fixed for hearing of the case without any intimation and no steps were taken to produce the witnesses or request the Magistrate to grant further time for the purpose or to issue summons, it cannot be said that in exercising the judicial discretion in discharging the petitioner, the learned Magistrate has committed any error resulting in any miscarriage of justice. The Food Inspector ought to have taken necessary steps. No doubt, as pointed out in the decision in State of M. P. v. Ramsingh, 1976 Jab LJ 696 once the Court has ordered issue of summons to the witnesses it is duty bound to procure their attendance without the requirement of a fresh application for the purpose but such was not the situation in the case in hand. The decision in State of M.P. v. Nathulal 1983 M P W R 246 is also distinguishable.

17. It is well settled that the discretionary re visional jurisdiction has been conferred on the Courts so that they may step in and interfere in cases where there is flagrant miscarriage of justice and this power has to be exercised in exceptional cases. There is certainly no case for interference under Section 482 of the Code.

Madhya Pradesh High Court

State Of Madhya Pradesh vs Punamchand And Ors. on 29 July, 1986

Equivalent citations: 1987 CriLJ 1232

Bench: K Shrivastava

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Can a person selling Gutka or Pan masala prosecuted for an offence U/S 328 of IPC be released on anticipatory bail?

 Section 328 of

IPC is attracted where the substance in question is poison or

any stupefying, intoxicating or unwholesome drug or other thing

is administered or caused to be taken by any person with an

intent to cause hurt or with an intent to commit or to facilitate

the commission of an offence or intent it to be likely that he will

thereby cause hurt, becomes punishable under the provision.

The first part of Section 328 contemplates a direct involvement

of person and second part suggest any indirect method for

causing one of the substances to be taken by any person.

Expression “causing” involves some action. “Causation” means

the action of causing something. “Intervening causation” means

an event that comes between the initial event in sequence and

the end result. Manufacturing “unsafe food” is initial event.

Causing its movement by transporting or storing it with an

intent to reach to end user are the events in sequence caused

by active participation of intermediate agencies or persons.

Thus, all such events involving active participation of persons

at each stage, is relevant. A person at end is a ‘consumer’ to

whom “unsafe food” is sold, knowing well that its consummation

would cause hurt to him. Persons involved in manufacturing

“unsafe food”, causing its movement to market or storing it with

intent to sell it, either himself or through other persons, while

prohibitory ‘order’ promulgated under Section 30 of the Food

and Safety Act is in force and such all persons, under express

or implied authority either individually or otherwise, “causes

person to take” unsafe food with intent to cause hurt. It is

indirect causation. It was further observed that the

manufacturing unsafe food articles, moving these goods from

manufacturing unit to market for its sale is an event and that

any action in chain of circumstances which foreseeably leads to

and facilitates the sale of food articles is further event may be

said to be a cause of that event to bring the action within the

expression’ “causes to be taken by a person”, any poison with

intent to cause hurt to such person, in Section 328 of the IPC.

The offence under Section 328 of IPC, essentially is not causing

someone else to do prohibited act but ‘causing’ a person to

consume food articles knowing well that its consumption would

hurt such person. Even otherwise, where the investigation is at

initial stage, and the relevant material is yet to be collected; it

may not be appropriate to hold that FIR does not make out an

offence under Section 328 of IPC. The said application was

rejected.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

ANTICIPATORY BAIL APPLICATION NO.483 OF 2021

Mohammed Ali Raheman @ MohammedAli Abdul Raheman Shaikh  Vs. The State Of Maharashtra 

CORAM : PRAKASH D. NAIK, J.

DATE : 24th MARCH, 2021

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What is distinction between S 300 of CRPC and Article 20(2) of Constitution of India?

 Section 300 of the CrPC embodies the aforesaid two principles of nemo debet bis vexari (no man shall be put twice in peril for the same offence) and autrefois acquit (the person has been acquitted on a same charge on which he is being prosecuted). These principles are slightly different from the principle of double jeopardy embodied in Article 20(2) of the Constitution of India. For invoking the principle of double jeopardy, conviction of the accused is necessary, because the words “prosecuted” and “punished” are used in Article 20(2) of the Constitution of India. Insofar as the Section 300 of the CrPC is concerned, a person convicted or acquitted, cannot be tried for the same offence. Therefore, the principle embodied in Section 300 of the CrPC can be invoked in both scenarios i.e. conviction or acquittal for the same offence. It is based on the aforementioned principle that no man shall be put twice in peril for the same offence.
 In the High Court of Bombay( Nagpur Bench)

(Before Manish Pitale, J.)

Sachin Vs State of Maharashtra,

Criminal Writ Petition No. 119 of 2020

Decided on August 4, 2021, 

Citation: 2021 SCC OnLine Bom 1576 : (2021) 3 AIR Bom R (Cri) 231 : 2021 Cri LJ 3457

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Whether tobacco and tobacco products are food as per food safety Act?

 33. We are not in agreement with Sanjay Anjay Stores (supra) upon which reliance has been placed by Mr. Bhangde, learned Senior Counsel for the petitioners, which holds that tobacco and tobacco products do not fall within the definition of ‘food’, as occurring in Section 3(j) of the FSSA, as the same gives a restrictive meaning to the word ‘food’, which is not permissible in light of the wider and comprehensive meaning given to the word in the definition. Section 3(j) of the FSSA, defines ‘food’ as under:

“3 (j) “Food” means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances.

Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality;

(y) “ingredient” means any substance, including a food additive used in the manufacture or preparation of food and present in the final product, possibly in a modified form;

(zk) “primary food” means an article of food, being a produce of agriculture or horticulture or animal husbandry and dairying or aquaculture in its natural form, resulting from the growing, raising, cultivation, picking, harvesting, collection or catching in the hands of a person other than a farmer or fisherman.”

34. The above definitions, clearly indicate that the provisions of the FSSA, do not intend to put any restrictive definition on the word ‘food’, rather it is otherwise, as indicated by use of the expressions ‘means any substance’, ‘containing such ingredients’, and widest possible scope and ambit has been been given to the word. It is also material to note that the definition of ‘food’, does not in any manner make it dependent upon its nutritional value nor that such substance can be consumed or digested in the stomach. No such position is reflected from a plain reading of the word ‘food’ as defined in Section 3(j). This is clearly fortified from the fact that even chewing gum, has been included in the definition of the word ‘food’. It is axiomatic, that chewing gum is not ingested but is only chewed for the juices/flavor it is laced with and then thrown out. Same is the case with tobacco and tobacco products, including Pan Masala, which are used for the juices they generate, in conjunction with saliva in the mouth, when chewed, which juices are ingested and the residue, thrown out. Thus no distinction could have been made in Sanjay Anjay Stores (supra) on the basis of nutritional value or ingestion, as the same is absent in Section 3(j) of the FSSA itself. Sri. Jaganath Enterprises (supra), which also takes a view that tobacco and tobacco products are not included in the definition of the word ‘food’, as defined in Section 3(j) of the FSSA and that COPTA holds the field, placing reliance upon Sanjay Anjay Stores (supra) is of no assistance to the petitioners, for the reasons stated above.

 In the instant matter, as already discussed, the definition of ‘Food’, as occurring in Section 3(j) of the FSSA, is not a restrictive one but is of wide amplitude, and itself takes into its compass, tobacco and tobacco products, and therefore the Court is not reading something which is not there in the definition.

In the High Court of Bombay(Bench Nagpur)

(Before Sunil B. Shukre and Avinash G. Gharote, JJ.)

Mohammad Yamin Naeem Mohammad and Others  Vs  State of Maharashtra, 

Criminal Writ Petition No. 543/2020

Decided on January 9, 2021, 

Citation: 2021 SCC OnLine Bom 26 : 2021 Cri LJ 1811 : (2021) 2 AIR Bom R (Cri) 69, MANU/MH/0024/2021. Read full Judgment here: Click here

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Whether the court can quash prosecution against accused under Food safety Act if there no FSL report or expert report?

As seen from the material placed on record, there is no FSL or expert report to the effect that the substance seized is dangerous/hazardous to public health. Hence, it is pertinent to

state that continuation of proceedings in the subject C.C is nothing but abuse of process of law. Therefore, the proceedings against the petitioner/A2 in the subject case are liable to be quashed.

TELANGANA HIGH COURT

Vinod kumar Vyas Vs State of telangana

 THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER

CRIMINAL PETITION No.8237 OF 2021

Date: 12.11.2021

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To what extent provisions of food adulteration Act is applicable to trial of food safety Act?

 Even though the said Act in fact incorporates various provisions of the Prevention of Food Adulteration Act, 1954, the said Act has not expressly superseded the Prevention of Food Adulteration Act, 1954. By applying Section 89 of the Food Safety and Standards Act, 2006, it has to be construed that the provisions of the Prevention of Food Adulteration Act, 1954 and the Rules made there under will continue to have operation in so far as its provisions are not inconsistent with the Food Safety and Standards Act. 2006. {Para 46}

IN THE HIGH COURT OF MADRAS

W.P. No. 18234 of 2008

Decided On: 30.09.2008

Hatsun Agro Product Ltd.  Vs. State of Tamil Nadu and Ors.

Hon'ble Judges/Coram: P. Jyothimani, J.

Citation:  MANU/TN/2491/2008.

Read full Judgment here: Click here

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Can a person selling Gutka or Pan masala prosecuted for an offence U/S 328 of IPC be released on anticipatory bail?

Having been found with the contraband articles, such as, Jarda, Pan Masala, Flavoured Supari, Scented Tobacco and Mava in contravention of the notification No. FSSA/Notification/901/7 dated 19.7.1919 and Notification No. FSSA/Notification/901/7 dated 15.7.2020 issued under Section 30(2)(a) of the Food Safety Standard Act, 2006 (hereinafter referred to as "FSS Act" for sake of brevity) by the Commissioner of Food Safety Maharashtra State, various FIRs under Sections 188, 269, 271, 272, 273, 307, 328, 353 of IPC and Section 59 of the FSS Act, came to be registered.

 In the matter of State of Maharashtra vs. Syed Hasan Syed Subhan MANU/SC/1021/2018 : 2018 AIR (SC) 5348 the Honourable Apex Court has clearly held that the non-compliance of the prohibitory order which prohibits transportation and sale of Ghutka and Pan Masala, would entail a prosecution under Section 55 of the FSS Act, but it has been held that the provisions of the Indian Penal Code can also be invoked and applied. The Apex Court did not find favour with the findings of the High Court, which had held that the non-compliance of the notification issued by the Food Safety Commissioner can be penalized only by imposing fine mentioned under Section 55 of FSS Act and no complaint under the Indian Penal Code could have been preferred by the Food Security Officer for violation of the prohibitory order. While setting aside the said finding, Their Lordships of the Apex Court held that the High Court was wrong in holding that the action can be initiated against the defaulters only under Section 55 or under Section 68 of the FSS Act, for adjudication.

21. This brings me back to the requisites of Section 328 of IPC. On closer scrutiny of Section 328, it is obvious for the prosecution to prove that the accused was directly responsible for administering poison etc. or causing it to be taken by any person, through another. Simply stating, the accused may achieve and complete the act by himself or by means of another. It is nowhere alleged that the applicants were primarily responsible for administering poison. It is also not the case that applicants had helped by aid of third person or by involving third person, who had authority to do so, caused it (poisonous substance) to be used by others. It would be premature to say that act of storage or transporting, as is alleged against the applicants, should be construed as fulfilling the requisites of Section 328 of IPC. There is need to guard against this hard-headed view, which is canvassed by the learned APP, on a sheer contemplation that the act of applicants would tantamount to an act of "administering" or "causing to be taken". The ratio laid down in the case of Joseph Kurian (supra) is all pervasive qua the cases in hand and applies with full rigour.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Anticipatory Bail Application Nos. 944, 1168, 1183,  of 2021

Decided On: 30.09.2021

 Munjabhau Manchakrao Rokde and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

V.G. Bisht, J.

Citation: MANU/MH/4640/2021

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Whether on the same facts, the accused can be prosecuted twice, once under IPC and subsequently under the food safety Act?

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. Sanjay MANU/SC/0761/2014 : (2014) 9 SCC 772 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 Indian Penal Code merely because the provisions in the FSS Act prescribe penalties. We, therefore, set aside the finding of the High Court on the first point.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1195 of 2018 

Decided On: 20.09.2018

 The State of Maharashtra and Ors. Vs.  Sayyed Hassan Sayyed Subhan and Ors.

Hon'ble Judges/Coram:

S.A. Bobde and L. Nageswara Rao, JJ.

Citation: MANU/SC/1021/2018,(2019) 18 SCC 145,

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Whether police can file chargesheet against accused under Penal Code if he is found in possession of Guthkha?

 There is no force in both the aforesaid submissions made for the applicant. This point was considered by the Apex Court in Criminal Application No. 1195 of 2018, ( The State of Maharashtra and others Vs. Sayyed Hasan and others) decided on 20.09.2018. The Apex Court has considered various provision of aforesaid special enactment and the  Apex Court has laid down that when offence punishable under Indian Penal Code is committed and it is cognizable in nature, crime can be registered. The provision of Section 188 of the Indian Penal Code was considered, and it is laid down by the Apex Court that when there is prohibitory order and there is breach of the provision, Section 188 of the Indian Penal Code can be used. The relevant provisions like Section 27 of the General Clauses Act are considered by the Apex Court and it is observed that there is no specific bar for registration of the crime in the scheme of the aforesaid special enactment. This point was considered by this Court also in Writ Petition No. 3398 of 2011 ( Sanket Food Products Private Limited Vs. Union of Indian and others) with connected matters. In that matter also Goa Gutkha was involved and this Court had considered the same challenges raised in the said matter. In that case manufacturer was also involved. In the present matter the vendor the person who was in found in possession of prohibited food articles is involved. Thus, the provision of Section 273 of the Indian Penal Code involving the Food substances which is dangerous to the life can be used in the present matter. The sample can be tested and ordinarily there is Magnesium Carbonate and there are also heavy metals in such substance. This Court has considered the provision of the previous Act, The Food Adulteration Act and Rules framed there under and there is not much different in between those provisions and the provisions of new enactment. It is laid down by this Court that Guthkha is food and if it is sold ( as eatable) and the provisions of the Indian Penal Code like section 272 and 328 of the Indian Penal Code are applicable, the crime can be registered. In the present matter also this Court hold that these provisions are squarely applicable and so the FIR cannot be quashed.  {Para 5}

Bombay High Court

Manik Dhondiba More vs The State Of Maharashtra And ... on 3 October, 2018

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Whether court can impose penalty under Food Safety Act on accused if he is prosecuted under the Prevention of food adulteration Act?

It is not in dispute that the charge against the appellant was only of sub-standardization of goods. Mr.Sushil Kumar Jain, learned senior counsel appearing for the appellant, submits that though the appellant has some prima facie case even on merits, he would be giving up the plea on merits and his only submission is about the sentence which has been imposed by the courts below. He has, in this behalf, argued that there has been an amendment in the Act by the Central Amendment Act 34 of 1976 whereby Section 16A was added and under the said section, only a fine is leviable. He has drawn our attention to the judgment of this Court in 'T. Barai v. Henry Ah Hoe and Another' [1983 (1) SCC 177] wherein this Court held that since the amendment was beneficial to the accused persons, it can be applied even with respect to earlier cases as well which are pending in the Court. In the said judgment, the Court held as under:

“22. It is only retroactive criminal legislation that is prohibited under Article 20(1). The prohibition contained in Article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable. But insofar as the Central Amendment Act reduces the punishment for an offence punishable under Section 16(1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense.

 Supreme Court - Daily Orders

Nemi Chand vs State Of Rajasthan on 10 March, 2016

         Citation: (2018) 17 SCC 448

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Whether court should release accused on anticipatory bail if he is found in possession of Gutka?

  In case of applicants Wahid Khan and Amit Agrawal are concerned, First Information Report itself indicates that the applicant Wahid Khan has stored huge quantity of contraband articles namely 'Gutka' in the Godown of Amit Agrawal. The secret information itself spells out that applicant Wahid Khan was running Welcome Pan Shop, who has stored goods in the Godown of Amit Agrawal. Though it is argued that case of Amit Agrawal lies on the distant footing, however the investigation paper reveals that the Godown was taken on rent by Amit Agrawal from one Shri Khetanmal. Therefore, it cannot be said that Amit Agrawal who was in the actual possession of Godown, was totally noway concern with the storage of goods. Prima facie, it is evident that both of them co-jointly stored huge quantity of 'Gutka' and sainted tobacco articles which requires thorough investigation. {Para 15}

16. It is very unfortunate to note that despite prevailing ban from a decade, still the large number of cases are emerging in the State about seizure of 'Gutka' products. Sizable number of youths are mostly affected by free sale of 'Gutka'. It is noticed that there was fearless smuggling of 'Gutka' products from the neighboring States. Though the punishment for the offence was made more stringent, still in the quest of making quick money, 'Gutka' is freely made available at the cost of Society. Emphasis is on the point that it ruins the new generation which is a matter of great concern.

17. The seizure of 'Gutka' in large quantity itself postulates that they were not for personal consumption but for sale. In order to reach to the genesis, thorough investigation is necessary. Grant of pre-arrest protection would cut down the further process of investigation. The offence is having larger impact on the health of Society. Considering all these circumstances, I do not find that these are fit cases where judicial discretion can be exercised.

18. In view of the above, all bail applications stand rejected and disposed of.

Bombay High Court

Gajanan S/O Ashok Agrawal vs State Of Mah. Thr. Pso Ps ... on 7 December, 2021

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Whether court can permit compounding of offences in The Food Safety and Standards Act cases?

 Section 69 in The Food Safety and Standards Act, 2006

69. Power to compound offences.-

(1) The Commissioner of Food Safety may, by order, empower the Designated Officer, to accept from petty manufacturers who himself manufacture and sell any article of food, retailers, hawkers, itinerant vendors, temporary stall holders against whom a reasonable belief exists that he has committed an offence or contravention against this Act, payment of a sum of money by way of composition of the offence which such person is suspected to have committed.

(2) On the payment of such sum of money to such officer, the suspected person, if in custody, shall be discharged and no further proceedings in respect of the offence shall be taken against such person.

(3) The sum of money accepted or agreed to be accepted as composition under sub-section (1), shall not be more than one lakh rupees and due regard shall be made to the guidelines specified in section 49: Provided that no offence, for which punishment of imprisonment has been prescribed under this Act, shall be compounded.

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Whether Magistrate can release the house sealed by Food Safety officer under Food Safety and Standards Act?

In the similar situation, the Hon'ble apex court in the case of Nevada Properties Private Limited Vs. State of Maharashtra, AIR 2019 SC 4554, in para Nos. 20 and 21 held as under:-

" 20. Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc., relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word seize would include such action of attachmetn and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossesses a person in occupation and take possession of an immovable proerty in order to seize it. In absence of the Legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hodl that this power should be inferred and is implicit in the power to the effect seizure..................................

21. In view of the aforesaid discussion, the Reference is answered by holding that the power of a police officer under Sectuion 102 of the code to seize any property, which may be found under circumtances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property."

9. In the context of the law laiddown by the Hon'ble apex Court in the case of Nevada Properties Private Limited (supra), this Court is of the view that power of seizure and forefeiture of immovable property has given to the courts and not to the prosecution authority and if the police officer or other officer has given power to seized the immovable property, it may be chaotic the circumstances.

10. Looking to the aforesaid facts and circumstances of the case, in the considered opinion of this Court, the trial court as well as revisional court have committed error in rejecting the application filed by the applicant under Section 451 of the Cr.P.C., seeking the direction to the respondents to unlock and open the seized business premises of the applicant without considering the fact that the Food Safety Officer after seizure of food articles from the business premises of the applicant, has already send the one samples of said food articles to State Food Laboratory, Bhopal and remaining food articles were destroyed by him, therefore, no purpose will be served in locking the said business premises of the applicant.

 Madhya Pradesh High Court

Laduram vs The State Of Madhya Pradesh on 16 January, 2020

Author: Sunil Kumar Awasthi

       M.Cr.C.No.51929/2019
                

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