HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 49 Case :- APPLICATION U/S 482 No. - 3381 of 2011 Petitioner :- Sanjay Jaisawal Respondent :- State Of U.P.And Another Petitioner Counsel :- Neeraj Kumar Srivastava Respondent Counsel :- Govt.Advocate Hon'ble Shri Kant Tripathi,J.
Learned counsel for the applicant is permitted to implead Union of India as respondent No. 3.
Heard Sri Neeraj Kumar Srivastava for the applicant and learned A.G.A. for respondents No. 1 and 2 and perused the record.
Sri Neeraj Kumar Srivastava, Learned counsel for the applicant submitted that the entire provisions of the Food Safety and Standards Act, 2006 ( hereinafter referred as the New Act ) have commenced on 29.7.2010 and according to the provisions of section 97 of the said Act, the Prevention of Food Adulteration Act (hereinafter referred as the Old Act) stood repealed and as such the complaint filed under section 7/16 of the Old Act against the applicant being not maintainable, is liable to be dismissed. Learned counsel for the applicant further submitted that a Division Bench of Lucknow Bench in Writ Petition Nos 8254 (MB) of 2010, 8255(MB) of 2010 and 8256(MB) of 2010 held that the provisions of Old Act stood repealed on the commencement of the New Act 2006, therefore, in view of the Division Bench decision in the aforesaid case, the present prosecution against the applicant is liable to be dropped.
Learned A.G.A. on the other hand submitted that the occurrence of the present case took place much prior to the commencement of the New Act, and even the complaint has been filed before such commencement, therefore, in view of section 97 of the New Act as well as section 6 of the General Clauses Act, already instituted proceeding would continue to be dealt with according to the Old Act.
It may not be out of context to mention that the judgment of the Division Bench comprising Hon. Mr. Justice Rajeev Sharma and Hon. Mr. Justice S.N.H.Zaidi in the aforesaid writ petitions was considered by another Division Bench comprising Hon. Mr. Justice Pradeep Kant and Hon. Mr. Justice Ritu Raj Awasthi in Writ Petition Nos. 4252 of 2010 and 10044 of 2010 and took a different view and referred the following question to a larger Bench:-
"Whether the notification issued on 29.7.2010 under Section 1, sub section (3) of the Act, 2006 has the effect of repealing the Prevention of Food Adulteration Act, 1954 and the U.P. Prevention of Food Adulteration Rules, 1976 or the aforesaid notification is only a notification regarding commencement of the said provision of the Act i.e. the date of its enforceability, which cannot be treated to be a notification under Section 97 (1) of the Act, 2006 issued by the Central Government ?"
As the controversy in regard to the commencement of the repealing clause has already been referred to the larger Bench, it would not be appropriate to this Bench to express any opinion.
Section 1(3) of the New Act seems to be relevant in regard to its commencement which reads as follows:
"(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision."
A perusal of the aforesaid provisions reveals that the Central Government had been deligated power to appoint the date on which the New Act shall came into force. The Central Government has further been empowered to appoint different dates for the commencement of different provisions of the New Act.
Learned counsel for the parties conceeded that the following notifications have been issued by the Central Government under section 1 (3) of the New Act regarding the commencement of various provisions of the New Act:-
(a) Sections 4 to 10, 87, 88, 91 and 101 came into force on 15.10.2007;
(b) Sections 3 and 30 came into force on 28.5.2008;
(c) Section 90 came into force on 28.8.2008;
(d) Sections 16 to 18, 81 to 86, 92 and 93 came into force on 18.11.2008;
(e) Sections 11 to 15 came into force on 9.3.2009;
(f) section 99 came into force on 29.6.2009;
(g) Sections 36 to 47 came into force on 31.7.2009;
(h) Sections 19 to 21, 23 to 29, 31 to 35, 48 to 80, 89, 94 to 98 and 100 came into force on 29.7.2010.
Therefore, Chapter IX of the New Act containing sections 48 to 80 relating to offences and penalties came into force on 29.7.2010, therefore the New Act would not be applicable in respect of an offence committed prior to 29.7.2010. Admittedly the occurrence of the present case took place on 12.6.2009 prior to the commencement of the Chapter IX of the New Act.
The Division Bench comprising Hon. Mr. Justice Rajeev Sharma and Hon. Mr. Justice S.N.H.Zaidi was of the view that the Old Act stood repealed on the commencement of Section 97 of the New Act. consequent upon publication of the notification dated 29.7.2010 issued under section 1 (3) of the New Act. The other Division Bench, however, took a different view and held that Section 97 of the New Act did not commence merely on issuance of the notification under section 1 (3) of the New Act and further held that issuance of a notification under section 97 by the Central Government appointing a date for the commencement of Section 97 was also necessary. Therefore the subsequent Bench was of the view that the Old Act will continue to remain effective so long as the notification required by section 97 of the New Act is not issued and published and as such Section 97 of the New Act did not commence on 29.7.2010.
In the present matter the controversy is some how different and the question regarding the date of the commencement of Section 97 of the New Act is not involved. If it is assumed that Section 97 of the New Act came into operation on 29.7.2010 as held by the Division Bench comprising Hon. Mr. Justice Rajeev Sharma and Hon. Mr. Justice S.N.H. Zaid, even then, the provisions of the Old Act were applicable to the present case, in view of the fact that the occurrence of the present case took place on 12.6.2009 much prior to the commencement of the Chapter IX of the New Act and other relevant sections of the New Act having bearing on the matter. It is well settled if any enactment is repealed, the rights and liabilities as well as the acts done under the repealed Act do not come into an end and they stand protected by Section 6 of General Clauses Act. Therefore, repeal of the Old Act with effect from 29.7.2010 does not affect the previous acts or proceedings. Even section 97 of the New Act, being identical to section 6 of the General Clauses Act, takes care of all past proceedings, acts, rights and liablities done under the repealed Act. Therefore by applying even the view expressed by the Division Bench comprising Hon. Mr. Justice Rajeev Sharma and Hon. Mr. Justice S.N.H. Zaidi, the proceedings of the criminal case being held against the applicant cannot be quashed on the ground of the commencement of the New Act. If the view expressed by the other Bench is taken into account, the question of repeal of the Old Act so long as the notification required by Section 97 of the New Act is not issued, does not arise and as such the complaint before the Magistrate is maintainable.
From the facts stated in the complaint and materials placed by the complainant in support of the complaint, a prima facie case under section 7/16 of the Old Act is made out against the applicant and the other accused, therefore, it does not appear to be proper to interfere with the complaint and its proceeding.
The present application has no merit and is therefore dismissed.
Order Date :- 9.3.2011 GNY