By virtue of Sec.89 of Food Safety and Standards Act, Sec.59 will override provisions of Sections 272 &273 of IPC, holds Apex Court
Justices Abhay S. Oka & Sanjay Karol [21-02-2024]

Read Order: RAM NATH v. THE STATE OF UTTAR PRADESH & ORS[SC-CRIMINAL APPEAL NO. 472 OF 2012]

Tulip Kanth

New Delhi, February 23, 2024:While observing that there are very exhaustive substantive and procedural provisions in the Food Safety and Standards Act, 2006for dealing with offences concerning unsafe food, the Supreme Court has held that section 59 will override the provisions of Sections 272 and 273 of the IPC.

The appellant had filed a petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) seeking quashing of the prosecution for the offences punishable under Sections 272 and 273 of the IPC. The State of Uttar Pradesh issued an order granting power to the authorities to initiate prosecutions under Sections 272 and 273 of the IPC as well as under the Prevention of Food Adulteration Act, 1954. Thereafter, an FIRwas lodged by a food inspector against the petitioner alleging that though the appellant did not possess a licence to sell the commodity of mustard oil, he continued to carry on the business of sale. Another allegation was that the petitioner had adulterated the mustard oil, edible oil and rice brine oil.

The petitioner approached the High Court to quash the FIR on various grounds. The appellant relied on Allahabad High Court's decision in the case of M/s. Pepsico India Holdings (Pvt) Ltd. &Anr v. State of Uttar Pradesh &Orswhereby it was observed that from 29^th July 2010, when the FSSA came into force, the provisions thereof would have an overriding effect over the food­related laws, including Sections 272 and 273.

Further, it was held that the police have no authority or jurisdiction to investigate a case under the FSSA. A criminal appeal was filed before the Top Court challenging the judgment of the High Court declining to quash offence u/s 272 and 273. The controversy in the present matter was whether the view taken in the case of PepsicoIndia(Supra)was correct.

It was the case of the State that there is no bar to the trial of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the same offence. It was submitted that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted under either one of the two enactments or both enactments but shall not be liable to be punished twice for the same offence.

The Counsel appearing for the accused submitted that the FSSA is very exhaustive legislation dealing with all aspects of food, including adulteration, unsafe food, etc. The submission was that in view of Section 5, any special law will remain unaffected by the provisions of the IPC.

Noting that the concept of unsafe food is more comprehensive than the concept of adulterated food, the Division Bench of Justice Abhay S. Oka and Justice Sanjay Karol noticed that sub­standard food cannot be unsafe food. Referring to sub­clause (v) of Clause (zz) of Section 3, the Bench opined that presence of any harmful substance in the article of food makes it unsafe food and if any adulterant is added to an article of food, which renders the article of food injurious to health, the food article becomes unsafe food. It was also observed that section 78 explicitly gives an overriding effect over the provision of sub­Section 3 of Section 319 of CrPC.

The Bench also made it clear that if adulteration of an article of food is made which makes such articles noxious as food or drink, the person who adulterates is guilty of an offence punishable under Section 272 of the IPC.Section 273 of the IPC applies when a person sells or, offers or exposes for sale any article of food or drink which has been rendered noxious or has become unfit for food or drink.

“Section 59 of the FSSA does not require the presence of intention as contemplated by Section 272 of the IPC. Under Section 59 of the FSSA, a person commits an offence who, whether by himself or by any person on his behalf, manufactures for sale or stores or sells or distributes any article of food for human consumption which is unsafe. So, the offence under Section 59 of the FSSA is made out even if there is an absence of intention as provided in Section 272 of the IPC. However, knowledge is an essential ingredient in sub­Section 1 of Section 48, and therefore, it will be a part of Section 59 of the FSSA”, the Bench said.

As per the Top Court, the maximum punishment for the offence under Section 272 of the IPC is imprisonment for a term which may extend to six months or with a fine. The substantive sentence for the offence punishable under Section 273 is the same, whereas, under Section 59, the punishment is of simple imprisonment extending from three months to a life sentence with a fine of rupees three lakh up to 10 lakhs. A limitation of one year is provided for the offence under Section 59, which is extendable up to three years as provided in Section 77 of the FSSA. By virtue of Section 468 of CrPC, the limitation for taking cognizance of the offence punishable under Sections 272 and 273 is one year. There is a power to extend time under Section 473 of CrPC. The power is not limited to three years, it added.

The Bench observed that section 89 indicates that the intention is to give an overriding effect to the FSSA over all ‘food­ related laws’. The main Section clearly gives overriding effect to the provisions of the FSSA over any other law in so far as the law applies to the aspects of food in the field covered by the FSSA. “When the offences under Section 272 and 273 of the IPC are made out, even the offence under Section 59 of the FSSA will be attracted. In fact, the offence under Section 59 of the FSSA is more stringent”, it added.

Reference was made to the judgment inState of Maharashtra [LQ/SC/2018/1200]wherein while dealingwith simultaneous prosecutions, the Top Court concluded that there could be simultaneous prosecutions, but conviction and sentence can be only in one. “We have no manner of doubt that by virtue of Section 89 of the FSSA, Section 59 will override the provisions of Sections 272 and 273 of the IPC. Therefore, there will not be any question of simultaneous prosecution under both the statutes”, the Bench said.

Thus, allowing the criminal appeals and setting aside the impugned orders, the Bench quashed the offences and also granted liberty to the authorities to initiate appropriate proceedings in accordance with the law if not already initiated.