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 food safety Act will have overriding effect over COPTA?

What is material to be noted is that COPTA has not been given any overriding effect upon any other law, holding the field or which may be enacted. The regulatory mechanism in COPTA is restricted to ensuring that the sale, storage, distribution, of cigarettes and other tobacco products is not without the warning label and is to persons above the restricted age and to discourage the use of tobacco. COPTA does not deal with the long term effects of smoking and consumption of tobacco and other products on the health of citizens.

42. As against this, the FSSA is a more comprehensive Act, dealing with the larger issue of Safety and Standards of Food in the country and in view of Regulation 2.3.4, prohibiting use of tobacco and nicotine as ingredients in any food products in the Food Safety and Standards (Prohibition and Restrictions On Sales) Regulations, 2011; by including Pan Masala in Regulation 2.11.5, Anti-caking agents in Regulation 3.1.7 in the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, has included tobacco and tobacco products, including Gutkha and Pan Masala within the definition of food as enumerated in Section 3 (j) of the FSSA.

43. In fact, in Raju Laxman Pachapure (supra) itself, relied upon by Mr. Bhangde, learned Senior Counsel for the petitioners, the Court, while considering the provisions of the Prevention of Food Adulteration Act, 1954, the harbinger of the FSSA, in juxtaposition with those of COPTA, placing reliance upon the judgment in Godawat Pan Masala (supra) noticed the difference between the two enactments, as under:

“25. It is true the Apex Court in Godawat Pan Masala's case held that mere traces of magnesium carbonate formed during consumption of product along with lime cannot be banned, but in the instant case anticaking agent viz., magnesium carbonate is not found during consumption but the analytical report discloses that magnesium carbonate is contained in the very sample which, in our considered opinion may be either externally added or present in the raw materials. Whatsoever the case may be, the report discloses that there is usage of anticaking agentviz., magnesium carbonate in the food article in question namely gutka. That apart Supreme Court in the very same decision held that the provisions of PFA Rules framed and directions issued thereunder cannot be said as not applicable merely because licence is contemplated for manufacture of gutka under the Cigarettes and other Tobacco Products (Prohibition of Trade and Commerce, Production, Supply and Distribution) Act, 2003. The PFA Act was legislated for the prevention of adulteration of food whereas Cigarettes and other Tobacco Products (Prohibition of Trade and Commerce, Production, Supply and Distribution) Act, 2003 is intended to prohibit advertising and to regulate the trade and as such there is no conflict between the legislative objects between the two enactments.”

(emphasis supplied)

44. Section 89 of the FSSA being material is reproduced as under:

“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.”

(emphasis supplied)

45. It is thus material to note that Section 89 of the FSSA, gives the provisions of the FSSA, an overriding effect on all other food related laws. Once it is held that tobacco and other products, fall within the definition of food as enumerated in Section 3 (j) of the FSSA, the overriding effect of Section 89 of the FSSA, would make the FSSA hold the field instead of COPTA. Joshy K.V.; Omkar Agency and Sanjay Anjay Stores (supra), which take a contrary view, according to us, do not lay down the correct law.

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

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Can the court convict an accused for selling buttermilk if the food adulteration Act prescribes no standard?

 It will be seen from the definitions of the various products in Appendix B to the Rules, which we have already extracted, that wherever the rule-making authority intended to prescribe a specific standard for the contents of a product, it definitely states so. The standards of solids-not-fat are fixed for the milk of cow, buffalo, goat or sheep. Though standards are fixed for the said milk products, in defining "skimmed milk", "deshi (cooking) butter", and "skimmed milk dahi or curd" the standard of quality is prescribed with reference to other products. But when we come to butter-milk, no standard for its contents either specifically or with reference to other items is prescribed. A comparative study of the said items leaves no room for doubt that the rule making authority, for reasons, which, we think, are obvious has not thought fit or feasible to prescribe any such standard in regard to the contents of butter-milk. We cannot by inference read some thing in the definition of butter-milk which is not there. The reason for this omission is presumably due to the fact that it is not possible to maintain in butter-milk the same percentage of solids-not-fat content as is found in curds or milk, for water will be added in the process of making butter-milk owing to the fact that butter grains in the churn are washed with cold water which will run off into the butter-milk. Anyhow, we would prefer to rest our judgment on the absence of fixation of any standard in respect of butter-milk rather than on the process of conversion of curds into butter-milk. We should not be understood to have expressed any view on the question whether a prosecution could be launched for adulteration of butter-milk under some other clauses of the definition of "adulterated" in s. 2 of the Act, for in the present case the prosecution was only for not maintaining the standard. {Para 22}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 93 of 1964

Decided On: 18.01.1966

M.V. Krishnan Nambissan  Vs. State of Kerala

Hon'ble Judges/Coram:

K. Subba Rao, M. Hidayatullah and R.S. Bachawat, JJ.

Author: K. Subba Rao, J.

Citations: 1966 AIR 1676, 1966 SCR (3) 373

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Whether the Court can set aside conviction of a person if food inspector has not undergone requisite training?

 Shri Ramesh Kumar, learned Counsel for the applicant, has contended that Chawla (PW 1) did not possess the requisite training in Food Inspection and sampling work as provided under the Second Proviso to Rule 8(c) of the Prevention of Food Adulteration Rules, 1955. Therefore, the conviction of the applicant cannot be sustained.

5. A perusal of the evidence of Chawla (PW 1) would indicate that he had not undergone the requisite training for three months to undertake Food Inspection and Sampling Work. It is, thus, evident that the mandatory requirement of law for taking sample of the milk was not done by a competent Food Inspector. The conviction and sentence of the applicant, therefore, cannot be sustained and it is accordingly set aside and revision is allowed. 

 In the High Court of Madhya Pradesh

(Before N.P. Singh, J.)

Gendalal  Vs State of M.P.

Cri. Revision No. 307 of 1993

Decided on February 4, 1997

Citation: 1997 SCC OnLine MP 495 : 1998 FAJ 301 : 1997 FAJ 301

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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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Whether accused in prevention of food adulteration Act can be acquitted if article of food was not injuries to health?

 We are of the considered view that once standards are laid down by the Legislature then those standards have to be followed. In items like milk which is a primary food, under the Act, it is not necessary to also prove that the food item had become unfit for human consumption or injurious to health. In cases of food coming under the Act, it is not required to prove that Article of food was injurious to health. In this case, the only question to be determined is whether the Article complies with the standards laid down or not? If it fails to comply with the standards then it will have to be treated as an adulterated article even if it is not rendered injurious to health. Even marginal deviation from the prescribed standard cannot be ignored.

9. We may point out that this Court in M.V. Joshi v. M.U. Shimpi and Anr. MANU/SC/0151/1961 : AIR (48) 1961 SC 1494 held as follows:

7. ...Therefore, if the quality or purity of butter falls below the standard prescribed by the said Rule or its constituents are in excess of the prescribed limits of variability, it shall be deemed to be adulterated within the meaning of Section 2 of the Act. If the prescribed standard is not attained, the statute treats such butter, by fiction, as an adulterated food, though in fact it is not adulterated. To put it in other words, by reason of the fiction, it is not permissible for an Accused to prove that, though the standard prescribed is not attained, the Article of food is in fact not adulterated. The non-conformity with the standard prescribed makes such butter an adulterated food. Section 7 of the Act prohibits the manufacture, sale, storage or distribution of such food....

14. The Act does not make a distinction between cases coming under it on the basis of the degree of adulteration. It does not provide for aggravation of offence based on the extent of contamination. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to the slightest extent, if continued in practice, would adversely affect the health of every man, woman and child in the country. Hence even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them, the maxim, De Minimis Non Curat Lex. law does not concern itself about trifles, does not apply to them.

15. The standard fixed under the Act is one that is certain. If it is varied to any extent the certainty of a general standard would be replaced by the vagaries of a fluctuating standard. The disadvantages of the resulting unpredictability, uncertainty and impossibility of arriving at fair and consistent decisions, are great.

16. The Act does not provide for exemption of marginal or border line variations of the standard from the operation of the Act. In such circumstances to condone such variations on the ground that they are negligible is virtually to alter the standard itself fixed under the Act.

17. The standards of qualities of the articles have been fixed by the Government under the provisions of the Act after due deliberation and after consulting a committee of competent men. It is for them to give due allowance for probable errors before fixing a standard. They may have done it also. There is no reason to assume otherwise. Therefore the conclusion is that for an Article of food when a standard has been fixed under the Act it has to be observed in every detail.

11. In view of the above settled law, we hold that if the standards are not complied with, the Court is not justified in acquitting the Accused charged with adulteration only on the ground that the deficiency is marginal.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1541 of 2019 

Decided On: 04.10.2019

Raj Kumar  Vs. The State of Uttar Pradesh

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

Citation: (2019) 9 SCC 427

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

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

contemplated under Chapter X of the IPC. We are also not
in a position to accept the findings of the High Court that
Section 55 of the FSS Act is the only provision which can be
resorted to for non compliance of orders passed under the
Act as it is a special enactment.
7. There is no bar to a trial or conviction of an offender
under two different enactments, but the bar is only to the
punishment of the offender twice for the offence. Where an
act or an omission constitutes an offence under two
enactments, the offender may be prosecuted and punished
under either or both enactments but shall not be liable to
be punished twice for the same offence. T.S. Baliah v. T.S.Rengachari – (1969) 3 SCR 65. The same set
of facts, in conceivable cases, can constitute offences
under two different laws. An act or an omission can
amount to and constitute an offence under the IPC and at
the same time, an offence under any other law.State of Bihar v. Murad Ali Khan – (1988) 4 SCC 655 The High
Court ought to have taken note of Section 26 of the General
Clauses Act, 1897 which reads as follows:
“Provisions as to offences punishable under
two or more enactments – Where an act or
omission constitutes an offence under two or more
enactments, then the offender shall be liable to be
prosecuted and punished under either or any of

those enactments, but shall not be liable to be
punished twice for the same offence.”
8. In Hat Singh’s3 case this Court discussed the doctrine
of double jeopardy and Section 26 of the General Clauses
Act to observe that prosecution under two different Acts is
permissible if the ingredients of the provisions are satisfied
on the same facts. While considering a dispute about the
prosecution of the Respondent therein for offences under
the Mines and Minerals (Development and Regulation) Act
1957 and Indian Penal Code, this Court in State (NCT of
Delhi) v. Sanjay4 held that there is no bar in prosecuting
persons under the Penal Code where the offences
committed by persons are penal and cognizable offences. A
perusal of the provisions of the FSS Act would make it clear
that there is no bar for prosecution under the IPC merely
because the provisions in the FSS Act prescribe penalties.
We, therefore, set aside the finding of the High Court on the
first point.
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1195 OF 2018

THE STATE OF MAHARASHTRA Vs SAYYED HASSAN SAYYED SUBHAN 

Dated:SEPTEMBER 20, 2018.

Citation: 2018 ALL MR (Cri) 5367 (S.C.)

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