Bombay High Court
Sk. Sujuddin Sk. Khaliuddin vs The State Of Maharashtra & Ors on 4 March, 2016
Bench: A.V. Nirgude
1 Cri WP 1027.15 & Ors.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1027 OF 2015
1 Ganesh Pandurang Jadhao, Aged 27 years, PETITIONERS
Occupation Driver, Resident of Gursale,
Taluka Khatav, District Satara
2 Chand Sahba Patel, Aged 43 years,
Occupation Driver, Resident of Shahapur,
Taluka Tuljapur, District Osmanabad
VERSUS
1 The State of Maharashtra, Through The RESPONDENTS
Principal Secretary, Food & Drugs Deptt.,
Mantralaya, Mumbai - 32
2 The State of Maharashtra, Through, it's Chief
Secretary
3 The State of Maharashtra, Through The
Principal Secretary, Home Department,
Mantralaya, Mumbai - 32
4 Food Safety Officer, Food & Drugs
Administration, Government of Maharashtra,
Osmanabad, District Osmanabad
5 Commissioner of Good Safety, Food and
Drug Administration, Maharashtra, Mumbai
Mr. R.R. Mantri, Advocate for the Petitioners
Mrs. A.V. Gondhalekar, A.P.P. for the Respondents - State
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WITH
CRIMINAL WRIT PETITION NO. 1186 OF 2014
Shankar Kanhaiyalal Lalwani, Aged 28 years, PETITIONER
Occupation Business, Resident of Bunglow
No.10, Manohar Virar, Shri Sadguru Nagar
Govind Nagar, Nashik CIDCO Colony
Nashik, Taluka and District Nashik
VERSUS
1
The State of Maharashtra, Through The
Police Inspector, Police Station Dhule, Taluka
RESPONDENTS
and District Dhule
2 Kishor Atmaram Salunke, Aged 32 years,
Occupation Food Security Officer, Food and
Drug Administration, Near Water Tank, Ashok
Nagar, Dhule, Taluka and District Dhule
Mr. D.B. Thoke, Advocate for the Appellants
Mrs. A.V. Gondhalekar, A.P.P. for the Respondents - State
WITH
CRIMINAL WRIT PETITION NO. 856 OF 2015
Sk. Sujauddin Sk. Khaliluddin, Aged 45 PETITIONER
years, Occupation Auto Driver, Resident of
SRT 211, Sanathnagar, P. Hyderabad -
500 018
VERSUS
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3 Cri WP 1027.15 & Ors.
1 The State of Maharashtra, Through The RESPONDENTS
Principal Secretary, Food & Drugs Deptt.,
Mantralaya, Mumbai - 32
2 The State of Maharashtra, Through, it's Chief
Secretary
3 The State of Maharashtra, Through The
Principal Secretary, Home Department,
Mantralaya, Mumbai - 32
4 Food Safety Officer, Food & Drugs
Administration, Government of Maharashtra,
Osmanabad, District Osmanabad
5 Commissioner of Good Safety, Food and
Drug Administration, Maharashtra, Mumbai
Mr. R.R. Mantri, Advocate for the Petitioners
Mrs. A.V. Gondhalekar, A.P.P. for the Respondents - State
WITH
CRIMINAL WRIT PETITION NO. 1183 OF 2015
1 Vijay Shantilal Chopada, Aged 42 years, PETITIONERS
Occupation Business, Resident of Nimgaon
- Korhale, Taluka Rahata, District
Ahmednagar
2 Pravin Rameshchandra Ajmera, Aged 40
years, Occupation Business, Resident of
New Hudco, Savedi, Taluka and District
Ahmednagar
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3 Anwar Yusufe Syed, Aged 38 years,
Occupation Business, Resident of H.No.
4/6/147, Near Ganesh Mandir, Dalalwadi,
Taluka and District Aurangabad
VERSUS
1 The State of Maharashtra, Through The RESPONDENTS
Home Department, Mantralaya, Mumbai - 32
2 The Director General Of Police, Maharashtra
State, Mumbai
3
The Commissioner of Food and Safety,
Maharashtra State, Mumbai
Mr. Shailesh S. Chapalgaonkar, Advocate for the Petitioners
Mrs. A.V. Gondhalekar, A.P.P. for the Respondents - State
WITH
CRIMINAL WRIT PETITION NO. 1368 OF 2015
Sk. Harun Sk. Sagir Ahmad, Aged 29 years, PETITIONERS
Occupation Education, Resident of Pangan
Road, Southern Ambikanagar, Beed, District
Beed
VERSUS
1 The State of Maharashtra, Through The RESPONDENTS
Principal Secretary, Food & Drugs Deptt.,
Mantralaya, Mumbai - 32
2 The State of Maharashtra, Through, it's Chief
Secretary
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5 Cri WP 1027.15 & Ors.
3 The State of Maharashtra, Through The
Principal Secretary, Home Department,
Mantralaya, Mumbai - 32
AND
Police Station Officer, Shivajinagar Police
4 Stgation, Beed, District Beed
Food Safety Officer, Food & Drugs
Administration, Government of Maharashtra,
Osmanabad, District Osmanabad
5
Drug
Commissioner of Good Safety, Food and
Administration, Government of
Maharashtra, Mumbai
Mr. R.R. Mantri, Advocate for the Petitioners
Mrs. A.V. Gondhalekar, A.P.P. for the Respondents - State
WITH
CRIMINAL APPLICATION NO. 615 OF 2014
Rameshkumar S/o Narendar Tiwari, Aged 39 APPLICANT
years, Occupation Service (Manager),
Resident of, C/o. Onkar Transport
Corporation Maharashtra Vibhag, Office 25,
Motiya Khan, 2nd Floor, Rani Jhasi Road,
New Delhi - 110055
VERSUS
1 The State of Maharashtra RESPONDENTS
2 Food Safety Inspector, Dhule, Resident of
Indumati Heights, Near Datta Mandir, Dhule,
District Dhule
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Mr. N.L. Choudhari, Advocate for the Applicant
Mrs. A.V. Gondhalekar, A.P.P. for the Respondents - State
WITH
CRIMINAL APPLICATION NO. 1369 OF 2014
Mujib Khan S/o. Majid Khan, Aged 39 years, APPLICANT
Occupation Labour, Resident of Gar Ka
Bangla, Kannad, Taluka Kannad, District
Aurangabad
VERSUS
1 The State of Maharashtra, Through the RESPONDENTS
Police Station Officer, Devgaon Rangari
Police Station, Taluka Kannad, District
Aurangabad
2 Anil S/o Arunrao Pawar, Aged 27 years,
Occupation Service, Resident of Food and
Drug Administration Office, Aurangabad,
District Aurangabad
Mr. A.R. Devakate, Advocate for the Applicant
Mrs. A.V. Gondhalekar, A.P.P. for the Respondents - State
WITH
CRIMINAL APPLICATION NO. 1992 OF 2014
Sayyed Ali Sayyed Hasan, Aged 42 years, APPLICANT
Occupation Business, Resident of Ekbal
Nagar, Purna, District Parbhani
VERSUS
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7 Cri WP 1027.15 & Ors.
1 The State of Maharashtra, Through The RESPONDENTS
Police Inspector, Police Station Purna,
District Parbhani
2 The Assistant Commissioner, Food and
Drugs Administratioin, Parbhani
Mr. Rahul Totala, Advocate, holding for
Mr. R.F. Totala, Advocate for the Applicant
Mrs. A.V. Gondhalekar, A.P.P. for the Respondents - State
ig WITH
CRIMINAL APPLICATION NO. 1993 OF 2014
1 Sayyed Hassan Sayyed Subhan, Aged 95 APPLICANTS
years, Occupation Nil,
2 Sayyed Ali Sayyed Hasan, Aged 42 Years,
Occupation Business,
3 Sayyed Habib Sayyed Hassan, Aged 30
Years, Occupation Business
All Resident of Ekbal Nagar, Purna, District
Parbhani
VERSUS
1 The State of Maharashtra, Through Police RESPONDENTS
Inspector, Purna Police Station, Purna,
District Parbhani
2 The Assistant Commissioner, Food and
Drugs Administration, Parbhani
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8 Cri WP 1027.15 & Ors.
Mr. Rahul Totala, Advocate, holding for
Mr. R.F. Totala, Advocate for the Applicant
Mrs. A.V. Gondhalekar, A.P.P. for the Respondents - State
WITH
CRIMINAL APPLICATION NO. 2271 OF 2014
1 Arun S/o. Hanumant Pannde, Aged 34 Years, APPLICANTS
Occupation Business, Resident of
Chikalthana, Taluka Kannad, District
Aurangabad
2 Shaikh Bilal Gulam Ghous, Aged 33 Years,
Occupation Business, Resident of
Karimnagar, Kannad, Taluka Kannad, District
Aurangabad
VERSUS
1 The State of Maharashtra, Through Police RESPONDENTS
Station Kannad, Taluka Kannad, District
Aurangabad
2 The Food Inspector, Food and Drugs
Administration, Aurangabad
Mr. P.F. Patni, Advocate for the Petitioners
Mrs. A.V. Gondhalekar, A.P.P. for the Respondents - State
WITH
CRIMINAL APPLICATION NO. 6982 OF 2014
Sachin S/o. Jawaharlal Jain, Aged 30 Years, APPLICANT
Occupation Business, Resident of Plot No.1,
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9 Cri WP 1027.15 & Ors.
Gut No. 77, Holkar Chowk, Satara Parisar,
Aurangabad, Taluka and District Aurangabad
VERSUS
The State of Maharashtra
RESPONDENTS
Mr. V.P. Raje, Advocate, holding for
Mr. C.R. Deshpande, Advocate for the Applicant
Mrs. A.V. Gondhalekar, A.P.P. for the Respondent - State
WITH
CRIMINAL APPLICATION NO. 4395 OF 2015
1 Mehboob Amirsab Tamboli, Aged 36 Years, APPLICANTS
Occupation Labour, Resident of Bisti Galli,
Ahmedpur, District Latur
2 Nisar Hussain altafhussain Shaikh, Aged 40
Years, Occupation Labour, Resident of Gadi
Galli, Ahmedpur, District Latur
VERSUS
1 The State of Maharashtra RESPONDENTS
2 Nitin Govindrao Kenekar, Aged 33 Years,
Occupation Service, Resident of Police
Station Ahmedpur, Taluka Ahmedpur, District
Latur
3 V.W. Hadke, Aged 52 Years, Occupation
Service, Resident of Police Station
Ahmedpur, Taluka Ahmedpur, District Latur
Mr. R.P. Adgoankar, Advocate for the Applicants
Mrs. A.V. Gondhalekar, A.P.P. for the Respondent - State
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WITH
CRIMINAL APPLICATION NO. 4517 OF 2015
1 Johel Ahemad S/o. Jamil Ahemad, Aged 25 APPLICANTS
Years, Occupation Eduation/Labour,
Resident of Mohd. Ali Road, Behind YS
Garage, Akola, Taluka and District Akola
2 Mohd. Khalil S/o. Mohd. Salim, Aged 26
Years, Occupation Labour, Resident of Old
Jaim Mandir, Mataka Bazar, Akola
VERSUS
1 The State of Maharashtra, Through Police RESPONDENTS
Station, Railway Nanded, District Nanded
2 Pravin S/o. Manoharrao Kale, Aged 45
Years, Occupation Service, Resident of C/o.
Food Safety Officer, Food and Drugs
Administration, Maharashtra State, Shri
Nagar, Nanded, District Nanded
Mr. R.O. Awasarmol, Advocate for the Applicants
Mrs. A.V. Gondhalekar, A.P.P. for the Respondents - State
CORAM : A.V. NIRGUDE &
INDIRA K. JAIN, JJ.
DATE : 4th March, 2016
JUDGMENT (Per A.V. Nirgude, J.) :-
1. All these Criminal Applications and Criminal Writ Petitions are
taken up for final hearing by consent of all the parties, and since the point
11 Cri WP 1027.15 & Ors.
raised in all these cases is more or less similar, they are disposed of by
this common judgment. For the purpose of disposal of the cases, we
would utilise facts of Writ Petition No. 1027 of 2015 as representative. We
understand that in most of the cases the facts are similar and the
petitioners / applicants are similarly placed.
2. On 14th May, 2015, the petitioner was found transporting larg
quantities of pouches of tobacco which is called 'Gutka' in common
parlance, pouches of pan-masala in a truck. The truck was stopped by
respondent no. 4, who is Food Safety Officer of Osmanabad district. He
alleged that he not only seized the goods but even lodged a police
complaint alleging that the petitioner had committed violation of
Government Notification, dated 15th May, 2014, prohibiting certain acts
pertaining to Gutka/Pan Masala and thereby committed offence
punishable under Sections 26 and 30 of the Food and Safety Standards
Act, 2006 (in short, FSS Act, 2006). He further alleged that the petitioner
was also liable to be prosecuted and punished for offences punishable
under Sections 272, 273, 188 and 328 of the Indian Penal Code. The
police registered offence vide a Crime No. 70 of 2015 and arrested the
petitioner. The petitioner secured bail, but asserted that lodging of
complaint and registration of crime for offences punishable under
provisions of Indian Penal Code was illegal. According to them, the
12 Cri WP 1027.15 & Ors.
offence punishable under Section 328 of the Indian Penal Penal Code is
not made out against them.
3. It is an admitted fact that the FSS Act, 2006, empowered
Food and Safety Commissioner, State of Maharashtra, under Section 30
of the FSS Act, 2006, prohibiting sale, manufacture etc. of some
commodities if he is satisfied that prohibition would be in "public interest".
Since 2013, the Commissioner has been promulgating year to year order
prohibiting manufacture of scented supari, tobacco, kharra etc. for a
period of one year. He also mentioned in the order that the violation
would entail penalty up to Rs.2,00,000/-. On the day of incident, the
prohibitory order was in force. It is, therefore, clear that admittedly the
petitioners were found to have committed violation of the prohibitory order.
(In the case it was found that the petitioner was transporting gunny bags
containing Pan-masala pacages and tobacco pouches. Transporting such
prohibited committee apparently amounted violation of the prohibitory
order and the petitioner was liable for certain penal action.)
4. The question is, what action in such situation is permissible in
the light of provisions of the FSS Act, 2006? In order to find out answer to
this question, one must read the provisions of the Food Safety and
Standards Act, 2006. This Act come into force in August, 2006. It
13 Cri WP 1027.15 & Ors.
consolidated the laws relating to food, and for establishing the food, safety
and standards authority of India. Said Act was made also for laying down
science-based standards for articles of food and to regulate their
manufacture, storage, distribution, sale and import. One of the important
object of this Act was to ensure that public at large should get safe and
wholesome food. The Act incorporated salient provisions of the
Prevention of Food Adulteration Act, 1954 and is also based on
international legislations,
ig instrumentalities and Codex Alimentaries
Commission which related to food safety norms. The Act contains detail
statements of objects and reasons.
5. The Act defined term 'Adultrant'. It means, any material which
is or could be employed for making the food unsafe or substandard,
misbranded or would contain extraneous matter (ramnants of raw
material, packaging material etc.).
The Act also define term 'food'. It says that 'food' means any
substance processed or otherwise which is intended for human
consumption.
The Act further defined term 'food additive'. This means, any
substance not normally consumed as a food by itself, but is intentionally
added to food for certain purposes.
14 Cri WP 1027.15 & Ors.
This Act also defined term 'unsafe food'. It means, an article
of food whose nature or substance or quality is so affected that it is
rendered injurious to health. The definition gives various examples and
reasons why food will be an articles of food would become unsafe food.
The Act establishes Food Safety and Standards Authority of
India. This authority is made a 'Body Corporate'. This authority would
establish its offices at any place in India, but its head office would be at
Delhi.
The Act also provides as to how food authority would be
composed. It also provides duties and functions of food authority. One of
the main duty of the food authority is that it shall regulate and monitor the
manufacture, processing, distribution, sale and import of food so as to
ensure sale and wholesome food. The authority is expected to regulate
standards and guidelines in relation to articles of food and enforcing
various standards notified under the Act. It would regulate limits of use of
food additives, contaminators, pesticide residues etc. in food. The food
authority would also provide scientific data to the Government in the
matter of framing policy relating to foods safety and nutrition. The authority
would collect and summarize relevant scientific and technical data relating
to food consumption and exposer of individual to risk relating to the
15 Cri WP 1027.15 & Ors.
consumption of food prevalence by biological risk etc. It should also
collect scientific data in respect of contaminants of food and in respect of
risks involved in consumption of food etc.
The Act then provided general provisions about articles of
food which includes use of food additives and processing aids
contaminants, pesticides etc. It also imposes special responsibilities on
food business operators.
The Act thus provides various methods to provide safe and
wholesome food for the society.
6. Chapter 7 of the Prevention of Food Adulteration Act, 1954,
provides provision for enforcement of the Act. The topmost authority
responsible for enforcement of the Act is the Food Authority at Center and
State Safety Authority at State level.
7. Section 30 of the Act provides that a Commissioner of Food
Safety of the State should be appointed for efficient implementation of
Food Safety and Standards. The Commissioner is empowered to prohibit
in the interest of public health, the manufacture, storage, distribution or
16 Cri WP 1027.15 & Ors.
sale of any article of food, either in the whole of the State or any part of it
for a period of which would not exceed one year.
Acting pursuant to these powers given to the Commissioner
under Section 30 of the Act, in 2013, the Commissioner opined that
"tobacco beetelnut, whether flavoured, scented or mixed with other
ingredients such as; nicotine, heavy metals, anti-caking agents, silver leaf,
binders, flavours, cents, fragrances, prohibited chemicals etc, which is
covered by definition of 'food' under the Act caused immense damage to
the health of consumers." Therefore, he prohibited manufactures support,
distribution or sale of Gutka or Pan Masala, containing either tobacco or
necotine or Magnesium Carbonate as ingredients.
8. Judicial notice can be taken of the fact that earlier to 2012 in
Maharashtra, there were number of business men who were engaged in
manufacturing Gutka or Pan Masala containing tobacco etc. These
products were sold freely to the members of public earlier.
9. The provisions of the FSS Act, 2006 made provisions for
appointment of 'Designated officer' who would be in-charge of Food Safety
administration for each district and 'Food Safety Officer'. The Act further
provides as to what powers are given to the Food Safety Officer and
17 Cri WP 1027.15 & Ors.
designated Officer. Section 38 of the FSS Act, 2006 provides powers of
Food Safety Officer. and in order to elaborate his powers we would rather
quote the provision itself. Section 38 of the Act reads as under:-
38. Powers of Food Safety Officer. - (1) The Food Safety Officer may -
(a) take a sample -
(i) of any food, or any substance, which appears to him to
be intended for sale, or to have been sold for human consumption; or
(ii) of any article of food or substance which is found by him
on or in any such premises;
which he has reason to believe that it may be required as evidence in
proceedings under any of the provisions of this Act or of the regulations
or orders made thereunder; or
(b) seize any article of food which appears to the Food Safety
Officer to be in contravention of this Act or the regulations made
thereunder; and
(c) keep it in the safe custody of the food business operator such
article of food after taking a sample;
and in both cases send the same for analysis to a Food Analyst for the
local area within which such sample has been taken:
Provided that where the Food Safety Officer keeps such article in
the safe custody of the food business operator, he may require the food
business operator to execute a bond for a sum of money equal to the
value of such article with one or more sureties as the Food Safety Officer
deems fit and the food business operator shall execute the bond
accordingly.
(2) The Food Safety Officer may enter and inspect any place
where the article of food is manufactured, or stored for sale, or stored for
the manufacture of any other article of food, or exposed or exhibited for
sale and where any adulterant is manufactured or kept, and take samples
of such articles of food or adulterant for analysis.
(3) Where any sample is taken, its cost calculated at the rate at
which the article is usually sold to the public shall be paid to the person
from whom it is taken.
(4) Where any article of food seized under clause (b) of subsection
(1) is of a perishable nature and the Food Safety Officer is satisfied that
such article of food is so deteriorated that it is unfit for human
consumption, the Food Safety Officer may, after giving notice in writing to
18 Cri WP 1027.15 & Ors.
the food business operator, cause the same to be destroyed.
(5) The Food Safety Officer shall, in exercising the powers of entry
upon, and inspection of any place under this section, follow, as far as may
be, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974)
relating to the search or inspection of a place by a police officer executing
a search warrant issued under that Code.
(6) Any adulterant found in the possession of a manufacturer or
distributor of, or dealer in, any article of food or in any of the premises
occupied by him as such and for the possession of which he is unable to
account to the satisfaction of the Food Safety Officer and any books of
account or other documents found in his possession or control and which
would be useful for, or relevant to, any investigation or proceeding under
this Act, may be seized by the Food Safety Officer and a sample of such
adulterant submitted for analysis to a Food Analyst:
Provided that no such books of account or other documents shall
be seized by the Food Safety Officer except with the previous approval of
the authority to which he is subordinate.
(7) Where the Food Safety Officer takes any action under clause
(a) of sub-section (1), or sub-section (2), or sub-section (4) or sub-section
(6), he shall, call one or more persons to be present at the time when
such action is taken and take his or their signatures.
(8) Where any books of account or other documents are seized
under sub-section (6), the Food Safety Officer shall, within a period not
exceeding thirty days from the date of seizure, return the same to the
person from whom they were seized after copies thereof or extracts there
from as certified by that person in such manner as may be prescribed by
the Central Government have been taken:
Provided that where such person refuses to so certify and a
prosecution has been instituted against him under this Act, such books of
account or other documents shall be returned to him only after copies
thereof and extracts there from as certified by the court have been taken.
(9) When any adulterant is seized under sub-section (6), the
burden of proving that such adulterant is not meant for purposes of
adulteration shall be on the person from whose possession such
adulterant was seized.
(10) The Commissioner of Food Safety may from time to time
issue guidelines with regard to exercise of powers of the Food Safety
Officer, which shall be binding:
19 Cri WP 1027.15 & Ors.
Provided that the powers of such Food Safety Officer may also be
revoked for a specified period by the Commissioner of Food Safety.
On perusal of above quoted provision, it is clear that the Food Safety
Officer Is empowered to take sample of any food, seize any article of food
which is found in contravention of the Act, keep such seized articles of
food in safe custody. He may even seize any adulterant found in
possession of manufacturer, distributor or dealer etc. of articles of food.
He could also seize books of account and other documents.
10. Section 41 of the FSS Act, 2006 provides special power of
Food Safety Officer. Section 41 of of the FSS Act, 2006 reads as under :-
41. Power of search, seizure, investigation, prosecution and
procedure thereof.- (1) Notwithstanding anything contained in sub-
section (2) of section 31, the Food Safety Officer may search any place,
seize any article of food or adulterant, if there is a reasonable doubt
about them being involved in commission of any offence relating to food,
and shall thereafter inform the Designated Officer of the actions taken by
him in writing:
Provided that no search shall be deemed to be irregular by reason
only of the fact that witnesses for the search are not inhabitants of the
locality in which the place searched is situated.
(2) Save as in this Act otherwise expressly provided, provisions of
the Code of Criminal Procedure, 1973 (2 of 1974) relating to search,
seizure, summon, investigation and prosecution, shall apply, as far as
may be, to all action taken by the Food Safety Officer under this Act.
The Food Safety Officer is given wide powers which are equivalent to
powers of a police officer as per the provisions of the Code of Criminal
20 Cri WP 1027.15 & Ors.
Procedure relating to search, seizure, summon, investigation and
prosecution.
11. Section 42 of the Act is a very peculiar provision of the Act. It
provides procedure in launching prosecution. Section 42 of the Food
Safety and Standards Act, 2006, reads as under :-
42. Procedure for launching prosecution. - (1) The Food Safety
Officer shall be responsible for inspection of food business, drawing
samples and sending them to Food Analyst for analysis.
(2) The Food Analyst after receiving the sample from the Food
Safety Officer shall analyse the sample and send the analysis report
mentioning method of sampling and analysis within fourteen days to
Designated Officer with a copy to Commissioner of Food Safety.
(3) The Designated Officer after scrutiny of the report of Food
Analyst shall decide as to whether the contravention is punishable with
imprisonment or fine only and in the case of contravention punishable
with imprisonment, he shall send his recommendations within fourteen
days to the Commissioner of Food Safety for sanctioning prosecution.
(4) The Commissioner of Food Safety shall, if he so deems fit
decide, within the period prescribed by the Central Government, as per
the gravity of offence, whether the matter be referred to,-
(a) a court of ordinary jurisdiction in case of offences
punishable with imprisonment for a term up to three years; or
(b) a Special Court in case of offences punishable with
imprisonment for a term exceeding three years where such Special Court
is established and in case no Special Court is established, such cases
shall be tried by a Court of ordinary jurisdiction.
(5) The Commissioner of Food Safety shall communicate his
decision to the Designated Officer and the concerned Food Safety Officer
who shall launch prosecution before courts of ordinary jurisdiction or
Special Court, as the case may be; and such communication shall also
be sent to the purchaser if the sample was taken under section 40.
21 Cri WP 1027.15 & Ors.
This provision provides that Designated Officer after scrutiny of report of
Food Analyst would decide as to whether the contravention, if any, is
punishable with imprisonment or fine only. If he finds that contravention is
punishable with imprisonment, he should send his recommendations
within fourteen days to the Commissioner seeking sanction for
prosecution. In case, the Designated Officer finds that contravention is
punishable only with fine, he would himself adjudicate and dispose of such
case. This
provision makes destination between two types of
contraventions; contravention which is punishable with imprisonment and
contravention which is punishable only with fine. Obviously, contraventions
which are punishable with imprisonment are serious cases and only such
cases are sent for adjudication in Court. Other cases are decided by
designated officers themselves. This means that, the Act ensures that
only serious cases would be referred to adjudication in Court either in
regular Court or in special Courts.
12. Chapter IX of the FSS Act, 2006 provides provisions relating
to offences and penalties. Section 48 of the FSS Act. 2006 mentions that
in what way a person would render any article of food injurious to health.
Section 49 of the FSS Act, 2006 provides that the Adjudicating Officer or
the Tribunal should adjudge the quantum of penalty for committing offence
22 Cri WP 1027.15 & Ors.
of rendering any article of food injurious to health. Chapter IX further
provides various penalties for selling sub-standard food, misbranded food,
misleading advertisement etc. As said above, the adjudication process for
such contraventions and penalty is generally an "in house proceeding".
The Act provided that Adjudicating Officers would decide such cases, and
in case of Appeal, a Tribunals specially established for such purpose
which would decide such cases. The Act clearly provided, as said above,
that only offences punishable with imprisonment are required to be sent to
the Courts of adjudication. All remaining cases would be decided by the
authorities appointed/established under the provisions of the Act. It
appears that this system of adjudication is made for protecting the
manufacturers, distributors, sellers etc. of food from lengthy litigation.
Chapter X provides how adjudication of cases relating to contravention,
involving penalty etc. would be decided. The Commissioner of Food
Safety would empower designated Officer to compound offences in petty
cases. This Chapter also provides how Food Safety Appellate Tribunal is
established and its procedure. This Chapter further provides that Civil
Court would have no jurisdiction in respect of any matter decided by the
Adjudication Officer or Tribunal. This Chapter further provides that
wherever the case is sent to Court, it would be decided as a summary
case by a Judicial Magistrate, First Class. This Chapter also provides that
in appropriate cases, Central Government or State Government may
23 Cri WP 1027.15 & Ors.
establish Special Courts and Special Public Prosecutors. Section 97 of
the FSS Act, 2006 provides that this Act would repeal seven Acts including
the Prevention of Food Adulteration Act, 1954 etc.
It is thus clear that Food Safety Officers are empowered to
seize articles found with any one in contravention of the prohibitory order
passed under Section 30 of the Act. In all the cases, the Food Safety
Officers found prohibited articles in possession of the petitioners and
applicants and in all cases such articles were seized.
13. The questions that arises then is, whether in such cases Food
Safety Officers should have gone to the Police Stations for lodging
complaints, and, secondly, whether acts complained amounted to any
offence punishable under provisions of the Indian Penal Code.
14. On careful perusal of provisions of Chapter IX and X of the
FSS Act, 2006 and the prohibitory order issued by the Commissioner, it
appears to us that contravention of prohibitory order would amount to
"failure to comply with directions of Food Safety Officers" as contemplated
in S.55, which provided penal action. Section 55 of the FSS Act, 2006,
reads as under :-
24 Cri WP 1027.15 & Ors.
55. Penalty for failure to comply with the directions of Food Safety
Officer. - If a food business operator or importer without reasonable
ground, fails to comply with the requirements of this Act or the rules or
regulations or orders issued thereunder, as directed by the Food Safety
Officer, he shall be liable to a penalty which may extend to two lakh
rupees.
This provision makes it clear that the contravention allegedly committed by
the petitioners was subject matter for adjudication under the provisions of
Chapter IX of the FSS Act, 2006. Since the violation or breach of direction
is not made punishable with imprisonment, it can not be referred to Court.
Such cases should therefore necessarily go before the adjudicating officer.
Section 68 of the FSS Act, 2006 provides how Adjudication Officer would
adjudicate such case and how he would decide quantum of penalty. By
no stretch of imagination, the cases in hand are required to be sent to
Court. Such cases, in our view, would never be referred to Court mainly
because the quantum of penalty does not include imprisonment.
15. The petitioner and applicants have stored/transported Gutka
and Pan Masala in bulk quantity. They knew in most of the cases that the
articles would be consumed in the State of Maharashtra. The question is,
whether possessing such articles knowing that articles would be
consumed in Maharashtra would amount to offence punishable under
provisions of the Indian Penal Code. Sections 272 and 273 of the Indian
Penal code read as under :-
25 Cri WP 1027.15 & Ors.
"Section 272. Adulteration of food or drink intended for sale. -
Whoever adulterates any article of food drink, so as to make such article
noxious as food or drink, intending to sell such article as food or drink, or
knowing it to be likely that the same will be sold as food or drink, shall be
punished with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand
rupees, or with both.
"Section 273. Sale of noxious food or drink. - Whoever sells, or offers
or exposes for sale, as food or drink, any article which has been rendered or
has become noxious, or is in the state unfit for food or drink, knowing or
having reason to believe that the same is noxious as food or drink, shall be
punished with imprisonment of either description for a term which may extend
to six months, or with fine which may extend to one thousand rupees, or with
both."
Both these Sections deal with adulteration of article of food. The first
question therefore is, whether Gutka or Pan Masala found in possession
of the applicant / petitioner were "adulterated food". The Indian Penal
Code does not define specifically what is food adulteration. However, we
can assume that adulteration of food would mean mixing any material to
food which would make the food unsafe and substandard. The Act
comprehensively defines term 'adulterant' in Section 3 (1) (A) of the FSS
Act, 2006. It reads as under :-
26 Cri WP 1027.15 & Ors.
"adulterant" means any material which is or could be employed for
making the food unsafe or sub-standard, mis-branded or containing
extraneous matter."
(zz) "unsafe food" means an article of food whose nature,
substance or quality is so affected as to render it injurious to health :--
(i) by the article itself, or its package thereof, which is composed,
whether wholly or in part, of poisonous or deleterious substance; or
(ii) by the article consisting, wholly or in part, of any filthy, putrid,
rotten, decomposed or diseased animal substance or vegetable
substance; or
(iii) by virtue of its unhygienic processing or the presence in that
article of any harmful substance; or
(iv) by the substitution of any inferior or cheaper substance
whether wholly or in part; or
(v) by addition of a substance directly or as an ingredient which is
not permitted; or
(vi) by the abstraction, wholly or in part, of any of its constituents;
or
(vii) by the article being so coloured, flavoured or coated,
powdered or polished, as to damage or conceal the article or to make it
appear better or of greater value than it really is; or
(viii) by the presence of any colouring matter or preservatives other
than that specified in respect thereof; or
(ix) by the article having been infected or infested with worms,
weevils, or insects; or
(x) by virtue of its being prepared, packed or kept under insanitary
conditions; or
(xi) by virtue of its being mis-branded or sub-standard or food
containing extraneous matter; or
(xii) by virtue of containing pesticides and other contaminants in
excess of quantities specified by regulations.
27 Cri WP 1027.15 & Ors.
16. In order to find out as to whether food is unsafe due to
presence of adulterant, it must be analyzed. Chapter VIII of the FSS Act,
2006 provides how an article of food is analyzed. This Chapter provides
procedure for taking samples of food and analysis of such samples. The
food Analyst would submit his report as to whether the food was mixed
with adulterant etc. In our cases, Gutka/Pan Masala was not sent for food
analysis. There is no certificate issued by the Food Analyst that Gutka or
Pan Masala is adulterated food.
ig Therefore, the contravention of the
prohibitory order is not punishable under Sections 272 and 273 of the
Indian Penal Code.
17. The Police also applied provision of Section 188 of the Indian
Penal Code. This provision reads as under :-
188. Disobedience to order duly promulgated by public servant
Whoever, knowing that, by an order promulgated by a public servant l
awfully empowered to promulgate such order, he is directed to abstain
from a certain act, or to take certain order with certain property in his
possession or under his management, disobeys such direction,
shall, if such disobedience causes or tend to cause obstruction,
annoyance or injury, or risk of obstruction, annoyance or injury, to any
person lawfully employed, be punished with simple imprisonment for a
term which may extend to one month or with fine which may extend to
two hundred rupees, or with both;
and if such disobedience causes or trends to cause danger to human life,
health or safety, or causes or tends to cause a not or affray, shall be
punished with imprisonment of either description for a term which may
28 Cri WP 1027.15 & Ors.
extend to six months, or with fine which may extend to one thousand
rupees, or with both.
Explanation- It is not necessary that the offender should intend to produce
harm, or contemplate his disobedience as likely to produce harm. It is
sufficient that he knows of the order which he disobeys, and that his
disobedience produces, or is likely to produce, harm .
The entire gamut of this provision is quite peculiar. It says that the culprit
should administer to the victim. A substance which would be stupefied or
poisonous with an intention to cause hurt to him. Possessing Gutka or
Pan Masala or transporting Gutka or Pan Masala does not amount to
administering it to any victim. As said above, Guta or Pan Masala were
not subjected to food analysis so far. On the other hand, the
Commissioner simply opined that it could be injurious to health. He
placed reliance on various reports which he received from time to time.
He did not placed reliance on report of food analysis appointed under the
provisions of FSS Act, 2006. It could therefore be said that Gutka or Pan
Masala could be poisonous. So, possessing or transporting Gutka or Pan
Masala did not amount to offence under Section 328 of the Indian Penal
code. In our view, this provision will not apply to the present cases.
Section 188 of the Indian Penal Code is part of Chapter X, which deals
with contempt of lawful authority of public servants. There are various
provisions which are related to public servants and causing disobedience
to their orders which would lead to obstruction, annoyance, injury to any
person and breach of law and order.
29 Cri WP 1027.15 & Ors.
18. The Commissioner in this case indeed is a public servant and he
has issued an order, and order is breached and disobeyed by the
applicants and petitioners. But, this disobedience apparently does not
tend to cause breach of law and order. The Commissioner's order is not
an order contemplated under Chapter 10 of the IPC. Besides, the
prohibitory order issued under Section 30 of the FSS Act, 2006 and its
violation, would amount to offence only under Section 55 of the FSS Act,
2006. This specific provision if made in a special enactment which is a
code in itself. It would not permit any one to apply Section 188 of the
Indian Penal Code to such breach or violation. Section 188 of the Indian
Penal Code thus is not applicable to the facts of the case.
19. The next question is, whether manufacturing, possession,
selling of Gutka and Pan Masala would amount to offence punishable
under Section 328 of the Indian Penal Code. Section 328 of the Indian
Penal Code reads as under :-
"328. Causing hurt by means of poison, etc., with intent to commit an
offence. - Whoever administers to or causes to be taken by any person
any poison or any stupefying, intoxicating or unwholesome drug, or other
thing with intent to cause hurt to such person, or with intent to commit or
to facilitate the commission of an offence or knowing it to be likely that he
will thereby cause hurt, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine."
By no stretch of imagination, manufacturing, possessing Gutka and Pan
30 Cri WP 1027.15 & Ors.
Masala would amount to administering poison. As said above, Gutka or
Pan Masala are not subjected to food analysis. The commissioner opined
that in its sale etc. ia not in public interest. This opinion is based on
various reports but not report of Food Analyst appointed under the
provisions of the FSS Act. Therefore, it cannot be said that Gutka and Pan
Masala are stupefying, intoxicating or unwholesome drug. Besides offering
these items of Food would not amount to intention to cause hurt. The
provisions of Section 328 of the Indian Penal Code to the present cases is
therefore impermissible.
In view of all above discussion, we proceed to pass the
following order :-
O R D E R
A) All Criminal Writ Petitions and Criminal Applications are
allowed.
B) Action taken by the Police against petitioners / applicants
under Sections 372, 373, 188 and 328 of the Indian Penal
Code is declared to be illegal. Such complaints are quashed.
31 Cri WP 1027.15 & Ors.
B) The Food Safety Officers are not prohibited from proceeding
against applicants / petitioners under the provisions of
Chapter X of the Food Safety and Standards Act, 2006.
( INDIRA K. JAIN, J. ) ( A.V. NIRGUDE, J. )
srm/4/3/2016
