Allahabad High Court
Shyam Kishore Chaurasia vs State Of U.P. on 22 November, 2022
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 84
Case :- APPLICATION U/S 482 No. - 6858 of 2012
Applicant :- Shyam Kishore Chaurasia
Opposite Party :- State of U.P.
Counsel for Applicant :- Prabodh Gaur,Prakhar Srivastava,Shiv Saran Sharma
Counsel for Opposite Party :- Govt.Advocate
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Prakhar Srivastava, learned counsel for applicant and learned AGA for State.
2. Applicant was summoned for an offence under Section 7/16 of Prevention of Food Adulteration Act, 1954 that edible material packed in a pouch was adulterated with tobacco and as such he has violated Rule 44(j) of Prevention of Food Adulteration Rules, 1955 as tobacco shall not be used as an ingredient in any food product.
3. Learned counsel for applicant placed reliance on a judgment passed by Supreme Court in Godawat Pan Masala Products I.P. Ltd. and another vs. Union of India and others (2004) 7 SCC 68 and para 77 thereof is reproduced as under:
"77. As a result of the discussions, we are of the view that:
1. Section 7(iv) of the Act is not an independent source of power for the state authority;
2. The source of power of the state Food (Health) Authority is located only in the valid rules made in exercise of the power under Section 24 of the Act by the State Government, to the extent permitted thereunder;
3. The power of the Food (Health) Authority under the rules is only of transitory nature and intended to deal with local emergencies and can last only for short period while such emergency lasts;
4. The power of banning an article of food or an article used as ingredient of food, on the ground that it is injurious to health, belongs appropriately to the Central Government to be exercised in accordance with the rules made under Section 23 of the Act, particularly, sub-section (1A)(f).
5. The state Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article, whether used as an article or adjunct thereto or not used as food. Such a power can only arise as a result of wider policy decision and emanate from Parliamentary legislation or, at least, by exercise of the powers by the Central Government by framing rules under Section 23 of the Act;
6. The provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 are directly in conflict with the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954. The former Act is a special Act intended to deal with tobacco and tobacco products particularly, while the latter enactment is a general enactment. Thus, the Act 34 of 2003 being a special Act, and of later origin, overrides the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the Schedule to the Act 34 of 2003;
7. The impugned notifications are ultra vires the Act and, hence, bad in law;
8. The impugned notifications are unconstitutional and void as abridging the fundamental rights of the appellants guaranteed under Articles 14 and 19 of the Constitution."
4. On the strength of above judgment, learned counsel for applicant submits that in Godawat Pan Masala Products I.P. Ltd. (supra) a notification issued by State of Maharashtra to the effect of manufacture, sale, storage and distribution of pan masala and gutka (Pan masala containing tobacco) was banned for different period, was set aside, therefore, no offence could be made out in the light of provisions of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 and applicant cannot be summoned for the above referred offence.
5. Learned AGA appearing for State, after arguing for some time, is not able to refute the above submissions on the basis of Godawat Pan Masala Products I.P. Ltd. (supra).
6. In view of above, the offence alleged against applicant cannot be made out. In the result, application is allowed. Criminal proceedings including order dated 29.07.2011 in Criminal Case No. 5443 of 2011 (State of U.P. vs. Shyam Kishore Chaurasia) under Section 7/16 of Prevention of Food Adulteration Act, 1954, are hereby quashed.
Order Date :- 22.11.2022
AK
