Supreme Court: Article 20 of Indian Constitution Doesn't Prohibit Court From Imposing Lesser Punishment As Per New Law

Whether the Appellant can be granted the benefit of the new legislation and be awarded a lesser punishment as is presently prescribed under the new law? This Court in T. Barai v. Henry Ah Hoe   MANU/SC/0123/1982 : 1982:INSC:92 : (1983) 1 SCC 177, had held that when an amendment is beneficial to the Accused it can be applied even to cases pending in Courts where such a provision did not exist at the time of the commission of offence. It was said 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.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1447 of 2024.

Decided On: 07.03.2024

A.K. Sarkar & Co. and Ors. Vs. The State of West Bengal and Ors.

Hon'ble Judges/Coram:

Sudhanshu Dhulia and P.B. Varale, JJ.

Citation: MANU/SC/0181/2024.

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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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Supreme Court: Prevention of Food Adulteration Act- Mere Dispatch Of Public Analyst's Report To Accused Not A Sufficient Compliance Of Mandatory Requirement To Serve It On Him

Under Sub-section (2) of Section 13, it is mandatory for the Local (Health) Authority to forward a copy of the report of the Public Analyst to the person from whom the sample of the food has been taken in such a manner as may be prescribed. Further mandate of Sub-section (2) of Section 13 is that a person to whom the report is forwarded should be informed that if it is so desired, he can make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample analysed by Central Food Laboratory. The report is required to be forwarded after institution of prosecution against the person from whom the sample of the Article of food was taken. Apart from the right of the Accused to contend that the report is not correct, he has right to exercise an option of sending the sample to Central Food Laboratory for analysis by making an application to the Court within ten days from the date of receipt of the report. If a copy of the report of the Public Analyst is not delivered to the Accused, his right Under Sub-section (2) of Section 13 of praying for sending the sample to the Central Food Laboratory will be defeated. Consequently, his right to challenge the report will be defeated. His right to defend himself will be adversely affected. This Court in the case of Vijendra (supra) held that mere dispatch of the report to the Accused is not a sufficient compliance with the requirement of Sub-section (2) of Section 13 and the report must be served on the Accused.

6. Perusal of the judgments of the learned Magistrate and Sessions Court show that the clerk who dispatched the report was examined by the prosecution. Though the prosecution has relied upon the remarks made by the Postman on the postal envelope, the Postman who has allegedly made the said remarks was admittedly not examined by the prosecution.

7. Rule 9B of the said Rules reads thus:

9B. Local (Health) authority to send report to person concerned--The Local (Health) Authority shall [within a period of ten days] after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him Under Sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the Article was taken by the food inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed Under Section 14A of the Act:

More than one mode was prescribed by Rule 9B for serving the report of Public Analyst on the Accused. In the present case, after the postal packet was returned, not even an attempt was made to personally serve the report on the Appellant.

8. On the basis of endorsements of the Postman appearing on the postal envelope containing the report, the High Court has recorded a finding of refusal on the part of the Appellant to accept the report. The said finding is obvious erroneous as the endorsements on the postal envelope were not proved by examining the Postman. Moreover, the High Court has glossed over the mandatory requirement Under Sub-section (2) of Section 13 of serving a copy of the report on the Accused. Evidence adduced by the prosecution was of mere dispatch of the report. Hence, the mandatory requirement of Sub-section (2) of Section 13 was not complied with. Therefore, the conviction and sentence of the Appellant cannot be sustained. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1312 of 2021 

Decided On: 29.10.2021

Narayana Prasad Sahu Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

Ajay Rastogi and Abhay Shreeniwas Oka, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: MANU/SC/1017/2021.

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Can the court convict an accused for adulteration of paneer if paneer has moisture due to natural causes?

 An offence under Section 2(ia)(m) will be made out if the quality or purity of the article falls below the prescribed standard. However, the proviso indicates an exception. Section 2(ia)(m) reads as follows:

“2. Definition.—In this Act unless the context otherwise requires,—

(ia) “adulterated”—an article of food shall be deemed to be adulterated— …..

(m) if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:

Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this subclause. {Para 8}

9. There was no whisper in the complaint or in the evidence as to whether the case would fall under the proviso. For instance, the report of the Public Analyst says that the moisture content was 77.6% and that as per the prescribed standard, it shall not contain more than 70%. But there is no indication as to whether the moisture content was more due to natural causes. Even, the milk fat content of the dry matter may depend upon the quality of the milk and this question was also not gone into.

10. Therefore, we are of the view that a petty shop owner has been prosecuted by making much ado about nothing. Hence, the appeal is allowed and the impugned order of the High Court confirming the order of the Sessions Court and the order of the Magistrate are set aside.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION 

CRIMINAL APPEAL NO.1800 OF 2022 

 M/S BHATTACHARJEE MAHASYA & ANR. Vs. THE STATE OF WEST BENGAL & ANR.

Coram: S. ABDUL NAZEER; J., V. RAMASUBRAMANIAN; J.

Dated:  October 17, 2022 

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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 the court should quash prosecution for misbranding of food article if relevant information is available on bar code?

That the barcode was available on the sample is not in

dispute. In view of the fact that the relevant information under

Rule 32(e) with regard to the lot/code/batch identification to

facilitate it being traced to the manufacturer are available in the

barcode and which can be decoded by a barcode scanner, we are

of the considered opinion that no useful purpose is going to be

served by allowing the present prosecution to continue and it will

be an abuse of the process of law, causing sheer waste of time,

causing unnecessary harassment to the appellant, if the

prosecution is allowed to continue.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 2942/2020

RAGHAV GUPTA  Vs STATE (NCT OF DELHI) 

([ HEARD BY: HON. ROHINTON FALI NARIMAN, HON. NAVIN SINHA AND HON.

INDIRA BANERJEE, JJ. ] )

Date : 04-09-2020 This petition was called on for pronouncement

of judgment today.

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Supreme Court:Amendment In Criminal Laws Beneficial To Accused Can Be Applied In Pending/Earlier Cases

We have considered the respective submissions. In

Criminal Appeal No.214 of 2006, this Court relied on a

decision in T. Barai Vs. Henry Ah Hoe and Another [(1983)

1 SCC 177] wherein it was opined that since the amendment

was beneficial to the accused persons, it could be

applied with respect to earlier cases as well which are

pending in the Court observing:

“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. 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1831 OF 2010

TRILOK CHAND  Vs  STATE OF HIMACHAL PRADESH 

Dated:October 01, 2019

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Whether prosecution under Prevention of food adulteration Act can be quashed if there is inordinate delay in launching of prosecution?

It is, thus, clear that by causing inordinate delay in launching the
prosecution against the petitioner (vendor), the petitioner was deprived of his
valuable right under section 13 of the Act to get the sample analyzed from the
Central Food Laboratory within the best use period of the article of the food in
question as such a right accrues only after the prosecution is launched. Even if it
is believed for the sake of argument, that a copy of the report of the public
analyst was sent to the petitioner and he was issued notice in terms of section
13(2) in that case also the right of getting the article analyzed by the Central
Food Laboratory was rendered meaningless as analysis of the sample after the
expiry of the period of its best use could not have served the purpose enshrined
in this valuable right of the accused.
Petitioner’s contention that he was deprived of his valuable right under
section 13 of the Act, therefore, deserves to be accepted. In Ghisa Ram’s case
(supra) in an identical fact situation, the Supreme Court has held as under:
“It appears to us that when a valuable right is conferred by
S. 13 (2) of the Act on the vendor to have the sample given to him
analyzed by the Director of the Central Food Laboratory, it is to be
expected that the prosecution will proceed in such a manner that
right will not be denied to him. The right is a valuable one, because
the certificate of the Director supersedes the report of the Public
Analyst and, is treated as conclusive evidence of its contents.
Obviously, the right has been given to the vendor in order that, for
his satisfaction and proper defence, he should be able to have the
sample kept in his charge analyzed by a greater expert whose
certificate is to be accepted by Court as conclusive evidence. In a 
case where there is denial of this right on account of the deliberate
conduct of the prosecution, we think that the vendor, in his trial, is
so seriously prejudiced that it would not be proper to uphold his
conviction on the basis of the report of the Public Analyst, even
though that report continues to be evidence in the case of the facts
contained therein.”
In this case also the action against the petitioner has been vitiated by
inordinate delay in launching the prosecution and thereby depriving him of his
valuable right under section 13 of the Act.
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr.P.C No. 49/2011
MP No. 47/2011
 Date of decision: 17.05.2018

Om Parkash Sharma Vs. State &ors.

Coram:
 Hon’ble Mr. Justice Janak Raj Kotwal, Judge.

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Whether it can be presumed that food product is not fit for testing if its shelf life has expired?

 Learned counsel for the applicants submitted
that the oil was manufactured on 22-6-2004 and the shelf
life was six months but the complaint was filed after 16
months and so the right given under section 13(2) of the
Act was lost. This contention is also not acceptable.
Report of the Public Analyst shows that the sample sent
was fit for testing. At this stage, it needs to be presumed
that the procedure as laid down in section 13 of the Act
was followed. It is not the case of the applicants that the
applicants wanted to avail the right and they had followed
the procedure as laid down in section 13(2) for sending
the second sample. Further, in the present matter the
substances mentioned in the report were found in the
edible oil. At this stage it cannot be said that such

substance is a bye-product when such oil is extracted
from seeds. Mixture of such substance is apparently not
permissible. In view of these circumstances the accused
ought to have exercised the right given under section
13(2) of the Act as the Local Health Laboratory had given
report that the sample was fit for testing and the sample
was found to be adulterated.
8) Learned counsel for the applicants placed
reliance on some reported and un-reported cases. In the
case reported as 1985 Cr.L.J. 1255 (Bombay High Court)
(Y.M. Koli v. D.A. Kokani) the Court held that the accused
was entitled to acquittal if on account of delay in filing
complaint the remaining samples had become unfit for
analysis. The substance involved was milk. In the case
reported as 2010(2) FAC 239 (Nagpur Bench) (Shivkumar
vs. State of Maharashtra) the matters involving
substances like mixed fruit jam, Rex Pineapple jam, Anik
ghee and Nutrela Vanaspati were considered. Samples
were apparently collected in April 1996 and prosecution
was instituted on 7-7-1999. It was held that there was no
compliance of section 13(2) of the Act as the report of the

Public Analyst was not sent to the person from whom
sample was taken. In view of the facts of those cases
criminal applications were allowed and the prosecution
and the cases were quashed. It needs to be observed that
in view of provisions of section 13(2) and 13(2-A) right
needs to be exercised by the accused and there is no
provision in the Act showing that the Court needs to act
with the presumption that after shelf life period, the food
article gets destroyed, it becomes unfit for testing. Food
substance may be different in each case. What can be true
in case of milk collected from container or curd collected
from container may not be true in respect edible oil
collected from closed tin after opening it. Further, as
already observed, in view of the definition of adulterant, in
some cases things which are found as adulterant cannot
come in existence due to process of decomposition.
Unless there is report of the laboratory that the sample is
not fit, the Court cannot raise such presumption. Each
case needs to be dealt with separately on the facts and
circumstances of that case. So, with due respect this
Court observes that the observations made in the cases
cited supra are of no use in the present matter.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Application No.2841 of 2006
 Cargill Foods India Ltd. V The State of Maharashtra.

 CORAM: T.V. NALAWADE, J.

 DATE : 25 JANUARY 2017
Citation: 2017 ALLMR(CRI) 1397

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When court will quash prosecution under prevention of food adulteration Act?

Taking note of the provisions of Section 13 of the Act, if we look into
the conduct of the respondent authorities what clearly reflects is that though the
authorities had received the report from the Public Analyst on 31.12.2004 the
prosecution case was lodged for the first time on 28.9.2005, that is, after a span
of more than nine months from the date of receipt of the Public Analyst. Further,
from the submissions made on either side what is reflected is that the alleged
two notices referred to by the respondent of having been issued to the petitioner
on 11.11.2005 and again on 18.6.2005 are not in fact notices issued as is
required under Section 13 of the Act but are notices which were issued to the
petitioner-establishment seeking for certain information in respect of the
Directors of the company. On the contrary, the prosecution case as per the stand
of the respondent was filed on 28.9.2005. It is also not in dispute rather has not
been disputed by the Counsel for the respondent that the life of the product
stood expired on 23.6.2005 and that the prosecution case has been lodged after
more than three months from the date the life of the product had expired.
8. In the given factual position apparently upon the respondent initiating
prosecution case against the petitioner they could not have availed the remedies
which was otherwise available to them under the provisions of Section 13 of the
Act. The denial of the said remedies would definitely be detrimental to the case
of the petitioner. It is relevant at this juncture to refer to the judgment of
Municipal Corporation of Delhi (supra) wherein in para 7 it has been held as
under :
"7. It appears to us that when a valuable right is
conferred by s. 13 (2) of the Act on the vendor to have the
sample given to him analysed by the Director of the Central
Food Laboratory, it is to be expected that the prosecution will
proceed in such a manner that that right will not be denied to
him. The right is a valuable one, because the certificate of
the Director supersedes the report of the Public Analyst and
is treated as conclusive evidence of its contents. Obviously,
the right has been given to the vendor in order that, for his
satisfaction and proper defence, he should be able to have
the sample kept in his charge analysed by a greater expert
whose certificate is to be accepted by Court as conclusive
evidence. In a case where there is denial of this right on
account of the deliberate conduct of the prosecution, we
think that the vendor, in his trial, is so seriously prejudiced
that it would not be proper to uphold his conviction on the
basis of the report of the Public Analyst, even though that
report continues to be evidence in the case of the facts
contained therein."
9. It would also be trite at this juncture to also refer to a judgment of the
coordinate Bench of this Court in Crimial Misc. Petition No. 181 of 2007 decided
on 27.8.2009 wherein also on some what similar factual background of the case,
this Court relying upon the case of the Municipal Corporation of Delhi (supra)
and other judgments in this regard, had allowed the petition of the petitioners
therein quashing the criminal prosecution initiated under the Act. Since in the
instant case also the admitted factual position clearly reflect that the prosecution
case itself was lodged much beyond the expiry of the life of the product the
petitioner could not have availed the remedies which were otherwise available to-
it under the provisions of Section 13 of the Act. Moreover, there appears to be a
genuine lapse on the part of the respondent-department in not taking prompt
action on the basis of the report of the Public Analyst. The dates which have
been referred in the preceding paragraphs clearly reflect that in spite of the fact
that the sample being collected on 23.11.2004 and the report of the Public
Analyst was received on 31.12.2004 the respondent did not take any prompt
action to initiate the prosecution case against the petitioner rather for reasons
best known to the respondent-department sat over the file with only issuance of
two letters to the petitioner-establishment seeking for information in respect of
the Directors of the said establishment. In fact, the respondent ought to have
immediately proceeded in accordance with the provisions of the Act so that the
petitioner if at all intended to assail the report of the public analyst could have
got an opportunity to avail the same and denial of the same would definitely
amount to violation of the provisions of law. For the aforesaid reasons, this Court
is of the opinion that the prosecution lodged against the petitioner is in
contravention to the provisions of the Act and is in direct conflict with the
provisions of Section 13 (2) of the Act.
HIGH COURT OF CHHATTISGARH, BILASPUR
 CRIMINAL MISC. PETITION NO. 714 OF 2015
Firm Ramdeo Food Products Pvt. Ltd.
Versus
State of Chhattisgarh,
Hon'ble Shri Justice P. Sam Koshy
Dated: 20/10/2016
Citation: 2017 CRLJ(NOC)70 CHH

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Whether retail seller of food product can be made accused in case of misbranding of food article?

Consequently, with contra distintivity occurring in the relevant
Food Adulteration Rules vis. a vis. the nature of misbranding
indulged by accused respondent No.3 wherefrom respondent
No.1 purchased the misbranded food item/food product without
his concerting to discover the factum of misbranding renders, all
the accused from whom the relevant food item stood transmitted
in an unbroken chain upto accused respondent No.1 wherefrom
the Food Inspector purchased the relevant food product, to be
vicariously liable for infringement of the relevant penal provisions.
IN THE HIGH COURT OF HIMACHAL PRADESH,
 SHIMLA

Cr. Appeal No. 113 of 2007
 Decided on : 26.10.2016
State of H.P
 V
Chaman Lal and another 
Coram
 Mr. Justice Sureshwar Thakur, Judge.
Citation: 2017 CRLJ 69

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Whether court can discharge accused in summons case?

Since the present case is a case instituted upon

a complaint, the court below was perfectly correct in

holding that since the case was being tried following the

procedure for summons case, the court below had no

jurisdiction to discharge the revision petitioner after his

appearance before the court in response to the summons

issued from the court.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                PRESENT:

                   MR. JUSTICE B.SUDHEENDRA KUMAR

          10TH DAY OF MARCH 2016

                                    Crl.Rev.Pet.No. 27 of 2012 

      ALIYAR, 
Vs

         THE FOOD INSPECTOR
          Citation: 2016 CRLJ4255 Kerala

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Whether prosecution can be quashed on the ground that shelf life of food had expired when prosecution was launched?

The contention on behalf of the applicants that the expiry date of
the sample has gone and thereafter the complaint has been filed and
therefore, the valuable right of the accused to get the sample further
analyzed by the Central Food Laboratory has been taken away and/or
grave prejudice shall be caused to the accused is concerned, at this stage
Rule 32 of the Rules is required to be referred to. “Best Before Date”
under Rule 32 of the Rules, merely requires the manufacturer to indicate
the period during which the product would remain fully marketable and
retain its specific qualities. Explanation VIII(i) thereunder provides that
beyond   the   “Best   Before   Date”,   the   food   may   still   be   perfectly
satisfactory. Expiry of the “Best Before Date” or the shelf­life of the
product   would   only   enable   the   manufacturer   to   disclaim   liability
regarding the marketability and the specific qualities of the product.
Expiry of the shelf­life would not automatically render the sample unfit
for analysis. Therefore, unless and until the sample is sent to the Central
Food Laboratory that too on the application made by the accused and

the Central Food Laboratory certifies that the sample is unfit for analysis
because of the delay, the contention on behalf of the accused would be
merely on assumption and presumption. That on mere apprehension
and/or   assumption   and   presumption,   the   criminal   complaint   is   not
required to be quashed and set aside and that too in exercise of powers
under Section 482 of the CrPC. 
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION  NO. 10672 of 2010

HOTEL SAVERA ­ THRO' ITS PARTNERS  &  3....Applicant(s)
Versus
STATE OF GUJARAT  &  1....Respondent(s)

CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 13/02/2015
Citation;2016 CRLJ 1070 GUJ

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How to prove sanction for prosecution in prevention of food adulteration case?

Equivalent Citation: 1990 AWC 113 All

IN THE HIGH COURT OF ALLAHABAD
Lucknow Bench

Cr. Appeal No. 532 of 1982

Decided On: 07.07.1989

Appellants: State
Vs.
Respondent: Jagdish Prasad

Hon'ble Judges/Coram:
G.B. Singh, J.

(A) Prevention of Food Adulteration Act, 1954 - Section 20--Sanction--Food Inspector stated that he produced the papers before the CMO who after going through the records and documents put up before him gave the consent for prosection--He further stated that the CMO signed on the sanction and he recognises his signatures--He was not cross examined--Sanction duly proved--Evidence Act, 1872, Section 47.

(B) Evidence Act, 1872 - Section 47--Scope of--Enough for a witness to say in examination-in-chief that he is acquainted with the handwriting--He need not state in the first instance that he knows a handwriting--It is the duty of the opposite party to explore in cross-examination the source of his knowledge, if he be dissatisfied with the testimony as it stands.

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Whether accused can be convicted on the basis of microscopic examination of food article in food adulteration case?

Equivalent Citation: 2015ALLMR(Cri)1873, 2015(2)BomCR(Cri)325, 2015CriLJ3558,2015(4)crimes 343 Bom

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Revision Application No. 209 of 2002

Decided On: 09.02.2015

Appellants: Shantilal
Vs.
Respondent: The State of Maharashtra

Hon'ble Judges/Coram:V.M. Deshpande, J.

Criminal - Acquittal - Lack of evidence - Sections 2(i-a), (a), 2(i-a)(m), 7(v) of Prevention of Food Adulteration Act, 1954 - Present appeal filed against order whereby Appellant was convicted for offence punishable u/s. 7(i) read with 2(i-a), (a), 2(i-a)(m) and Section 7(v) read with Rule 50 punishable u/s. 16(1)(a)(ii) and 16(1)(a)(I) of Act - Whether - Held, clear from report of Public Analyst that chemical tests were performed and sample was found fit as per prescribed standard - Therefore, only on basis of microscopic examination, it could not be said that Foreign starch was found - No quarrel that Public Analyst, who adopted microscopic test, was not provided by Legislature - When Legislature had not approved such test, therefore, conviction could not be based on such microscopic examination, especially when on chemical test, 'Besan' was found to be in conformity with standard - Therefore, impugned order of conviction was set aside - Appeal allowed.

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Whether food adulteration case can be quashed on the ground of delay in trial?

 I agree with the learned State counsel that the Act does not make a distinction between cases coming under it on the basis of the degree of adulteration. An item of food is either adulterated or not. The Act does not provide for examption of marginal or border line cases from its operation. However, keeping in view the inordinate delay of 10 years in concluding the trial against the petitioner read with the trivial variation of the standard found in the sample has definitely caused prejudice to the petitioner in the preparation of his defence and further continuation of the complaint against the petitioner would be violative of Article 21 of the Constitution of India.

Punjab-Haryana High Court

Rajbir Singh Sunar vs State Of Haryana on 20 October, 1995

Equivalent citations: 1996 CriLJ 1245

Bench: P Jain

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Whether fresh consent for prosecution is required after receipt of report of Central Food Laboratory in food adulteration case?

As regards the submission of the learned advocate for the Petitioner on the aspect of not having valid consent as mandatorily required under Section 20 of the Act to prosecute the Petitioner for misbranding is concerned, it is pertinent to note that this contention was not raised either before the trial court or before the revisional court but for the first time it was raised before this Court and, therefore, that ground would not be available to the Petitioner. Still, however, it may be stated that on the said issue of consent, law has been laid down by the Hon'ble Apex Court in the case of Food Inspector, Ernakulam v. P.S. Sreenivasa Shenoy MANU/SC/0436/2000 : AIR 2000 SC 2577 : AIR 2000 SCW 2667 in paragraphs 24 and 28 as under:

24. We find the reasoning of the Division Bench of the Gujarat High Court in State of Gujarat v. Ambalal Maganlal 1978 Cri LJ 1036 (supra) as sound and in accordance with law. There is no good reason for making two different categories of cases with the help of Certificates issued by Central Food Laboratory. The Full Bench of the Himachal Pradesh High Court missed the basic legal position in this regard that report of the Public Analyst alone is contemplated for instituting the prosecution and consent or sanction is necessary only for such institution, and that a post-institutional development while exercising a statutory right conferred on the accused for challenging the report of the Public Analyst during trial is not a premise for turning the key backward for a fresh institution of the prosecution, whatever be the result of the analysis made by the Central Food Laboratory. Hence in our view the legal position propounded by the Full Bench of Himachal Pradesh High Court is erroneous.
28. We are, therefore, of the view that if the prosecution has been validly instituted, neither any new data nor any added reasons contained in the Certificate issued by the Director of the Central Food Laboratory would be sufficient to annul the sanction already obtained with which the prosecution was already instituted. The trial has to proceed with the Certificate on record which superseded the report of the Public Analyst.

It has been specifically held by the Hon'ble Supreme Court in the aforesaid reported case that when report of a Public Analyst was superseded by a certificate of Director of Central Food Laboratory, it is not necessary to obtain a fresh consent to institute prosecution and recommence the proceedings under the Act. It was also held that if the prosecution has been validly instituted, neither any new data nor any added reasons contained in the certificate issued by the Director of the Central Food Laboratory would be sufficient to annual the sanction already obtained with which the prosecution was already instituted.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Criminal Misc. Application No. 8392 of 2010

Decided On: 24.03.2011

Appellants: Nestle India Limited thro' Rajendra Rajput (Manager Sales)
Vs.
Respondent: State of Gujarat and Anr.

Hon'ble Judges/Coram:
M.B. Shah, J.

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When company should not be discharged in food adulteration case?

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Criminal Misc. Application No. 8392 of 2010

Decided On: 24.03.2011

Appellants: Nestle India Limited thro' Rajendra Rajput (Manager Sales)
Vs.
Respondent: State of Gujarat and Anr.

Hon'ble Judges/Coram:
M.B. Shah, J.

Criminal - Discharged - Sections 2(ix)(a), 2(ix)(d), 7(1)(v) and 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 - Magistrate discharged Accused Nos. 1 and 2 while proceedings against Accused No. 3 for offence punishable under Sections 2(ix)(a), 2(ix)(d), 7(1)(v) and 16(1)(a)(i) of Act were directed to be continued - However, Sessions Judge dismissed Revision filed by Accused No. 3/Petitioner - Hence, this Petition - Whether, Petitioner could be entitle to be discharged - Held, when report of a Public Analyst was superseded by a certificate of Director of Central Food Laboratory, it was not necessary to obtain a fresh consent to institute prosecution and recommence proceedings under Act - It was also held that if prosecution had been validly instituted, neither any new data nor any added reasons contained in certificate issued by Director of Central Food Laboratory would be sufficient to annual sanction already obtained with which prosecution was already instituted - However since Complainant had not disclosed name of nominee or person in charge of day-to-day management affairs of Company, Company could be joined as Accused - Inspite of writing letter by Complainant to Accused No. 3/ Petitioner Company, no reply had been given - Since Company did not disclose name of nominee, only option for Complainant was to join company as an Accused - It became clear that Petitioners had no right to be discharged at threshold of trial only on basis of proviso to Section 17(i)(b) - At threshold of trial and in absence of any positive evidence suggesting absence of knowledge on their part and due efforts of preventing offence alleged, Accused Petitioners had no right to be discharged - Though letter was written by Complainant to Accused No. 3-Company, Company had not replied to same disclosing name of person or nominee who would be responsible for conduct of business - Since there was no nomination, person responsible for company would have to face prosecution and proviso to Section 17(i)(b) alone, in absence of any positive proof could not entitle Petitioners to be discharged - Petition dismissed.


"Every person who at time of commission of offence is in charge of and is responsible in company for conduct of business of company shall be deemed to be guilty of offence and shall be liable to be proceeded against and punished accordingly."

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When prosecution against accused can be quashed in case of prevention of food adulteration?

Equivalent Citation:

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Application No. 3439 of 2006

Decided On: 21.06.2010

Appellants: Shivkumar alias Shiwalamal Narumal Chugwani Proprietor of Kanhaiya General Stores
Vs.
Respondent: State of Maharashtra at the instance of Subhash Madhukar Choudhary
[Alongwith Criminal Application Nos. 3440, 3441, 3442, 3443, 3444, 3445 of 2006, 1290 of 2008]

Hon'ble Judges/Coram:
A.B. Chaudhari, J.

Food and Adulteration - Quashing of Proceedings - Section 10(7A)(7B)(6)(7) and (8) and Section 13(2) of Prevention of Food Adulteration Act, 1954 - Present application filed for quashing of proceedings initiated under Act against applicants - Held, sample was collected by food inspector on relevant date and prosecution was instituted after three years and three months of that relevant date - Implementing agency or food inspector does not even know that without instituting prosecution in Court, report of Public Analyst cannot be sent to person from whom sample was taken to enable him to send sample to Central Food Laboratory as done in present case - This Court fail to understand as to why Department and its officers waste time in making correspondence with accused when Section 10(7A)(7B)(6)(7) and (8) of Act clearly empower them to act to find out all details required - There is violation of valuable right of applicants under Section 13(2) of Act and since it is settled law that in case of such violation prosecution cannot succeed - Hence applications are allowed and proceedings are set aside

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