Sachin S/O Shantilal Bhansali vs State Of Mah., Thr. P.S.O. Ps ...
2021 Latest Caselaw 10254 Bom

                                                   CORRECTED-Judgment Cr.WP 119.2020.odt




           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

               CRIMINAL WRIT PETITION NO. 119 OF 2020


Sachin S/o Shantilal Bhansali,
Aged about - 35 years, Occupation -
Business, R/o Malkapur, Buldhana
                                                       .. Petitioner

                   Versus

1. The State of Maharashtra, through
Police Station Officer, Police Station -
Malkapur City, Buldhana                              .. Respondents

2. Food Safety Inspector, Buldhana


Mr. Akshay Naik, Advocate for petitioner.
Mr. Sagar Ashirgade, APP for respondents.



                                     CORAM :   MANISH PITALE, J.
                       RESERVED ON         :   27/07/2021
                PRONOUNCED ON              :   04/08/2021




JUDGMENT

Hearing was conducted through Video Conferencing

and the learned counsel agreed that the audio and visual quality was

proper.

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(2) Rule. Rule made returnable forthwith. Heard

finally with the consent of the learned counsel for the rival parties.

(3) The petitioner has invoked the principles of nemo

debet bis vexari (no man shall be put twice in peril for the same

offence) and autrefois acquit (the person has been acquitted on a same

charge on which he is being prosecuted), embodied in Section 300 of

the Criminal Procedure Code, 1973 (CrPC), in order to demonstrate

that the Court of Chief Judicial Magistrate, Buldhana in the present

case has erred in passing the impugned order.

(4) On 27/01/2014, the Food Safety Officer, Buldhana

submitted a complaint before the police alleging that banned

substance i.e. Gutkha and other such material was found stored in Om

Shanti Pan Center at Malkapur, run by the petitioner. On this basis,

First Information Report (FIR) stood registered against the petitioner

for alleged offences under Sections 188, 273 and 328 of the Indian

Penal Code (IPC), as also Section 59(iii) of the Food Safety and

Standards Act, 2006 (hereinafter referred to as the 'FSS Act').

(5) Upon completion of investigation, charge-sheet was

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filed against the petitioner for offences under Sections 188 and 272 of

the IPC and Section 59 of the FSS Act. Regular Criminal Case No.28 of

2014, was conducted in the Court of Judicial Magistrate First Class at

Malkapur. After recording of evidence in the said trial, by judgment

and order dated 24/08/2015, the petitioner was acquitted of the said

offences. The Magistrate found that the material on record was not

sufficient to prove the said offences against the petitioner.

(6) In the interregnum, during the pendency of the

aforesaid trial, another Food Safety Officer, on 20/01/2015, initiated a

criminal case before the Court of Chief Judicial Magistrate, Buldhana,

for the very same incident dated 27/01/2014, wherein Gutkha and

other such material was allegedly recovered from the Pan Center, run

by the petitioner. The said proceedings bearing S.C.C.No.90 of 2015,

were pending before the Court of Chief Judicial Magistrate, Buldhana

when, on 09/02/2018 the petitioner moved an application (Exh.19)

before the said Court for dismissal of the said case, by relying upon

Section 300 of the CrPC. The petitioner relied upon the aforesaid

judgment and order dated 24/08/2015 passed by the Court of Judicial

Magistrate First Class at Malkapur, acquitting him of offences under

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the IPC and the FSS Act, to contend that criminal proceedings could

not be initiated against him again on the basis of the very same

allegation and for the same alleged offence under Section 59 of the

FSS Act.

(7) On 26/02/2018, the respondents filed their reply,

opposing the said application. It was contended that the proceedings

before the Judicial Magistrate First Class at Malkapur, were void ab

initio, because the Food Safety Officer had not followed the mandate

of Section 42 of the FSS Act before initiating prosecution against the

petitioner under Section 59 of the FSS Act. By the impugned order

dated 27/02/2019, the Court of Chief Judicial Magistrate, Buldhana,

rejected the said application filed on behalf of the petitioner. The said

Court found that even though there was an order of acquittal in favour

of the petitioner for offence under Section 59 of the FSS Act, since the

acquittal order was passed by a Court, which was not competent to try

offence under the FSS Act, the order of acquittal could be of no avail.

It was held that since the order of acquittal was passed by the Court,

which could not be said to be a Court of competent jurisdiction,

Section 300 of the CrPC could not be invoked. Aggrieved by the said

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judgment and order, the petitioner filed the present writ petition in

which notice was issued and the respondents filed their reply. The

petition was finally heard.

(8) Mr. Akshay Naik, learned counsel appearing for the

petitioner submitted that the Court of Chief Judicial Magistrate failed

to appreciate the scope of Section 300 on the CrPC, while passing the

impugned order. It was submitted that the finding rendered in the

impugned order that the earlier prosecution initiated against the

petitioner under the provisions of the FSS Act was without jurisdiction

and that the order of acquittal was passed by a Court not competent to

try the petitioner under the FSS Act was wholly erroneous and based

on an inappropriate appreciation of the position of law.

(9) The learned counsel for the petitioner placed

reliance on judgment of the Hon'ble Supreme Court in the case of

State of Maharashtra and another vs. Sayyed Hassan Sayyed Subhan

and others1, to contend that a Food Safety Officer under the provisions

of the FSS Act could initiate criminal proceeding for offences not only

under the FSS Act, but also the offences under the IPC, as long as

1 (2019) 18 SCC 145

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allegations levelled against the accused demonstrated ingredients of

offences under the FSS Act, as well as the IPC. By relying on the said

judgment, it was submitted that the prosecution launched against the

petitioner in the first place for the alleged incident dated 27/01/2014,

by the Food Safety Officer was competent and it had culminated in an

order of acquittal in favour of the petitioner. On this basis, it was

submitted that on the very same alleged incident, a second complaint

could not have been filed by the Food Safety Officer and that

therefore, the application filed by the petitioner under Section 300 of

the CrPC for dismissal of the subsequent complaint, ought to have

been allowed by the Court of Chief Judicial Magistrate. On this basis it

was submitted that the writ petition deserved to be allowed.

(10) On the other hand, Mr. Sagar Ashirgade, learned

APP appearing on behalf of the respondents submitted that this Court

ought to take into consideration the fact that the petitioner himself

delayed filing of an application for dismissal of the complaint under

Section 300 of the CrPC. It was submitted that although the

subsequent complaint was filed on 20/01/2015, when the trial on the

basis of the FIR registered at the behest of the Food Safety Officer was

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pending, the said application under Section 300 of the CrPC was filed

much later on 09/02/2018. It was submitted that if the petitioner had

been vigilant and he had filed the said application immediately before

the Court of Chief Judicial Magistrate, the matter would have been

different. It was then submitted by the learned APP that in the present

case, the Food Safety Officer was supposed to follow the specific

procedure laid down in Section 42 of the FSS Act for initiating criminal

proceedings against the petitioner. By inviting attention of this Court

to the said provision, the learned APP submitted that when the

allegations levelled against the petitioner pertained to offence under

Section 59(iii) of the FSS Act, the matter pertained to a Special Court,

as provided under Section 42(4)(b) of the FSS Act. Therefore, the

initial complaint leading to registration of FIR, filing of charge-sheet

and trial conducted before the Court of Judicial Magistrate First Class,

was wholly incompetent. In fact, this was one of the grounds for

acquittal of the petitioner and that therefore, the subsequent criminal

proceeding initiated by the Food Safety Officer was maintainable.

The learned APP supported the impugned order by submitting that

acquittal by a Court incompetent to try the petitioner under the

provisions of the FSS Act, could not come to his rescue and that the

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principles embodied in Section 300 of the CrPC could not be invoked

in favour of the petitioner. On this basis, the learned APP sought

dismissal of the writ petition.

(11) Heard learned counsel for the rival parties and

perused the material on record. Section 300 of the CrPC embodies the

aforesaid two principles of nemo debet bis vexari (no man shall be put

twice in peril for the same offence) and autrefois acquit (the person

has been acquitted on a same charge on which he is being prosecuted).

These principles are slightly different from the principle of double

jeopardy embodied in Article 20(2) of the Constitution of India. For

invoking the principle of double jeopardy, conviction of the accused is

necessary, because the words "prosecuted" and "punished" are used in

Article 20(2) of the Constitution of India. Insofar as the Section 300 of

the CrPC is concerned, a person convicted or acquitted, cannot be tried

for the same offence. Therefore, the principle embodied in Section

300 of the CrPC can be invoked in both scenarios i.e. conviction or

acquittal for the same offence. It is based on the aforementioned

principle that no man shall be put twice in peril for the same offence.

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(12) In the facts of the present case, it needs to be

examined whether the Court of Chief Judicial Magistrate was justified

in concluding that the acquittal order passed in favour of the petitioner

was that of a Court not competent to conduct the trial against the

petitioner. The said finding of the Chief Judicial Magistrate appears to

proceed on the basis that the Court of Judicial Magistrate First Class,

in pursuance of registration of FIR, filing of charge-sheet and

conducting trial was incompetent to consider offences under the

provisions of the FSS Act. This appears to be based on the specific

procedure prescribed under Section 42 of the FSS Act, pertaining to

the manner in which the Food Safety Officer is to proceed for

launching prosecution under the FSS Act.

(13) But, this finding appears to be in the teeth of the

law laid down by the Hon'ble Supreme Court in the case of State of

Maharashtra vs. Sayyed Hassan Sayyed Subhan (supra), wherein it has

been categorically held that the Food Safety Officer can also lodge

complaint for offences punishable under the IPC, in addition to

offences under the FSS Act. The Hon'ble Supreme Court has referred

to Section 26 of the General Clauses Act, 1897, which provides as

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follows :-

"Section 26. Provision as to offences punishable under two or more enactments - Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."

(14) After referring to the said provision, the Hon'ble

Supreme Court has held that the Food Safety Officer could certainly

initiate prosecution under the provisions of the IPC, as well as the FSS

Act, so long as the ingredients of the offences stood satisfied. It was

categorically held that the provisions of the FSS Act make it clear that

there is no bar for prosecution under the IPC, merely because the

provisions in the FSS Act prescribe penalty. Thus, the Court of the

Chief Judicial Magistrate in the impugned order committed an error in

proceeding on the basis that when FIR was registered against the

petitioner for offences under the IPC and the FSS Act, the Court of

Judicial Magistrate First Class could not have conducted the trial

against the petitioner, insofar as the offence under the FSS Act was

concerned. The very basis of the impugned order is found to be

erroneous. This is evident from the following observations made by

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the Hon'ble Supreme Court in the said case of State of Maharashtra vs.

Sayyed Hassan Sayyed Subhan (supra) :-

"7. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law."

(15) The facts of the present case further show that the

subsequent complaint lodged by the Food Safety Officer dated

20/01/2015, also specifically pertains to the same alleged incident

dated 27/01/2014, in respect of which the petitioner already faced

trial for alleged offences under the IPC and the very same provision i.e.

Section 59 of the FSS Act and stood acquitted by the judgment and

order dated 24/08/2015. Thus, the subsequent complaint lodged by

the Food Safety Officer dated 20/01/2015, pertained to the very same

incident and for the very same alleged offence under Section 59 of the

FSS Act.

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(16)                      The Court of Chief Judicial Magistrate committed an

error in the impugned order in proceeding on the basis that the

Officer in the first instance was not competent to file charge-sheet for

an offence under Section 59 of the FSS Act, because, it was the Food

Safety Officer who was supposed to launch the prosecution in terms of

Section 42 of the FSS Act and that considering the allegation against

the petitioner, the matter ought to have gone to a Special Court

referred to in the said provision. The learned APP also referred to

acquittal of the petitioner under Section 59 of the FSS Act, not only

because lack of evidence, but because the Judicial Magistrate First

Class in the judgment and order dated 24/08/2015, while acquitting

the petitioner, held that due procedure of law for launching

prosecution as mandated under Section 42 of the FSS Act was not duly

followed.

(17) But, if the reasoning of the Court of Chief Judicial

Magistrate adopted in the impugned order and the contentions raised

by the learned APP are to be accepted, it would amount to permitting

the Food Safety Officer to launch prosecution afresh by rectifying the

lacuna in the procedure adopted in the first place. This is clearly

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impermissible. Therefore, it is found that the aforesaid principles

embodied in Section 300 of the CrPC clearly apply in the facts of the

present case. The Hon'ble Supreme Court in the case of Ravinder

Singh vs. Sukhbir Singh and others 2 in this context has held as

follows :-

"25. The principle of issue estoppel is also known as "cause of action estoppel" and the same is different from the principle of double jeopardy or; autrefois acquit, as embodied in Section 300 Cr.P.C. This principle applies where an issue of fact has been tried by a competent court on a former occasion, and a finding has been reached in favour of an accused. Such a finding would then constitute an estoppel, or res judicata against the prosecution but would not operate as a bar to the trial and conviction of the accused, for a different or distinct offence. It would only preclude the reception of evidence that will disturb that finding of fact already recorded when the accused is tried subsequently, even for a different offence, which might be permitted by Section 300(2) CrPC. Thus, the rule of issue estoppel prevents re- litigation of an issue which has been determined in a criminal trial between the parties. If with respect to an offence, arising out of a transaction, a trial has taken place and the accused has been acquitted, another trial with respect to the offence alleged to arise out of the transaction, which requires the court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial, is prohibited by the rule of issue estoppel. In order to invoke the rule of issue estoppel, not only the parties in the two trials should be the same but also, the fact in issue, proved or not, as present in the earlier trial, must be identical to what is sought to be re-

agitated in the subsequent trial. If the cause of action was determined to exist, i.e., judgment was given on it, the same is said to be merged in the judgment. If it was

2 (2013) 9 SCC 245

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determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. (See : Manipur Administration, Manipur v. Thokchom, Bira Singh, AIR 1965 SC 87; Piara Singh v. State of Punjab, AIR 1969 SC 961; State of A.P. v. Kokkiliagada Meerayya, AIR 1970 SC 771; Masud Khan v. State of U.P., AIR 1974 SC 28; Ravinder Singh v. State of Haryana, AIR 1975 SC 856; Kanhiya Lal Omar v. R.K. Trivedi, AIR 1986 SC 111; Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626; and Swamy Atmananda v. Sri Ramakrishna Tapovanam, AIR 2005 SC 2392)."

(18) Applying the said principle to the facts of the

present case, it becomes evident that if the impugned order is upheld

and the petitioner is made to face the criminal proceedings

subsequently initiated by the Food Safety Officer, it would amount to

putting him twice in peril for the same offence. This cannot be

permitted and hence the impugned order deserves to be set aside.

(19) Accordingly, the present Writ Petition is allowed.

(20) The impugned order dated 27/02/2019, passed by

the Court of Chief Judicial Magistrate, Buldhana is quashed and set

aside.

(21)                      The application filed by the petitioner under Section


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300 of the Cr.P.C. (Exh.19) is allowed and accordingly, the proceeding

pending before the Court of Chief Judicial Magistrate, Buldhana

bearing SCC No.90 of 2015 is dismissed. No Costs.

(22)                       Rule is made absolute in above terms.




                                                      [ MANISH PITALE J. ]
KOLHE/P.A.




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