Manish Gupta vs The State Of Madhya Pradesh
2021 Latest Caselaw 1192 MP

          THE HIGH COURT OF MADHYA PRADESH 1
                    MCRC 11462 of 2021
                 Manish Gupta vs. State of MP

Gwalior, Dated : 01/04/2021

       Shri Nirmal Sharma, Counsel for the applicant.

       Smt. Uma Kushwah, Panel Lawyer for the respondent/ State.

This application under Section 482 of CrPC has been filed for

quashing the FIR in Crime No.13/2021 registered at Police Station

Bairad, District Shivpuri for offence under Sections 420, 272 of IPC

and under Sections 51, 26(2)(ii) of Food Safety and Standards Act,

2006 ( in short '' the Act, 2006'').

It is the case of the applicant that on 18/11/2020, the Food

Safety Officer conducted a raid on Manish Milk Dairy and took

samples of milk, which was alleged to be kept for sale. As per the

report of Food Analyst, the said sample was found to be of substandard

quality and accordingly, FIR has been registered under the above-

mentioned Sections. It is the case of the applicant that some proceeding

has been initiated before the SDM which is pending consideration and

since there is a provision for penalty, therefore, the registration of FIR

in the light of pending proceeding before the Court of SDM is bad as it

amounts to double jeopardy. It is submitted that the applicant is

running a Milk Dairy and it is incorrect to say that the milk was kept

for sale. In fact, the milk products were produced and sapreta was left

after preparation of food products. It is further submitted that since the

adjudicating authority or the Tribunal as provided under Sections 69

and 70 of the Act, 2006 is empowered to impose penalty, therefore, the THE HIGH COURT OF MADHYA PRADESH 2 MCRC 11462 of 2021 Manish Gupta vs. State of MP

registration of FIR is beyond the purview of the Act, 2006. It is further

submitted that the Act, 2006, is a complete Act in itself and has its own

procedure as well as penal provisions. It is submitted that under

Section 68 of the Act, 2006 provides for competent authority, Section

69 provides for compounding the offence and Sections 70 and 71

provides for powers of the Appellate Tribunal. It is submitted that

under Section 69 of the Act, the competent authority has authority to

compound the offence and accordingly, initiation of proceedings under

the IPC is bad.

Heard the learned Counsel for the applicant.

According to the FIR, the sample of milk which was collected,

was found to be of substandard quality and the milk fat was found to

be 0.4 per cent against minimum of 4.5 per cent. Similarly, S.NF was

found to be 8.2 per cent against minimum of 8.5 per cent.

It is the case of the applicant that since the Act, 2006 is a

complete Act in itself and provides for separate procedure for

penalties, therefore, the FIR is not maintainable as it would amount to

double jeopardy.

Article 20(2) of the Constitution of India reads as under:

''(2) No person shall be prosecuted and punished for the same offence more than once.''

Section 300 of CrPC reads as under:-

300. Person once convicted or acquitted not to be tried for same offence. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while THE HIGH COURT OF MADHYA PRADESH 3 MCRC 11462 of 2021 Manish Gupta vs. State of MP

such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.

(2)A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220.

(3)A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.

(4)A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first- mentioned Court is subordinate.

(6)Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897 ) or of section 188 of this Code.

Explanation.- The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.''

From the plain reading of above-mentioned Sections, it is clear

that until and unless a person has already been tried for an offence and

the judgment on merits has been passed, it cannot be said that the

prosecution of the suspect/accused is bad because of double jeopardy.

In the present case, it is not the case of the applicant that any THE HIGH COURT OF MADHYA PRADESH 4 MCRC 11462 of 2021 Manish Gupta vs. State of MP

penalty has already been imposed on him. Further, the offence has also

been registered under Sections 420 and 272 of IPC. It is not the case of

the applicant that he had already displayed in his shop that adulterated

or substandard milk is sold. It is the defence of the applicant that the

milk was not kept for the purpose of sale but it was a sapreta after

manufacturing of milk products. According to the FIR, he is running a

Milk Dairy. The applicant has not produced any licence to show that he

is competent to produce any milk product. Further, it would be a

defence of the applicant that the sample which has been collected, was

not a milk but it was a sapreta and it was not meant for sale. Further,

the applicant has not clarified as to why he had kept the sapreta in his

shop, specifically when according to him, the same was not meant for

sale. Further, it is not the case of the prosecution as well the applicant

that it was displayed by the applicant that the so-called milk/sapreta

was not meant for sale. Selling any adulterated or substandard product

to the innocent customers by projecting that the said product is a pure

and safe for human consumption, would certainly be an offence under

Section 420 of IPC.

So far as the offence under Section 272 of IPC is concerned, the

defence of the applicant that the milk was not kept for sale, cannot be

accepted at this stage. If the milk/sapreta was not meant for sale, then

he should not have kept the same in the shop and should have kept

somewhere else or should have destroyed. Prima facie, it is clear that THE HIGH COURT OF MADHYA PRADESH 5 MCRC 11462 of 2021 Manish Gupta vs. State of MP

the sample of milk which has been collected by the Officer, was meant

for sale, and it was not sapreta as claimed by applicant.

So far as the contention of the Counsel for the applicant that

since the Act, 2006 is a complete Act in itself which provides for

separate procedure for penalty is concerned, the Counsel for the

applicant could not point out any provision of the Act, 2006 which bars

the applicability of provisions of General Criminal Law or IPC.

The Act, 2006 merely provides for penalties for contravening the

provisions of the Act, 2006, whereas the offence under Sections 420

and 272 of IPC are different from the provisions of the Act, 2006. In

absence of any bar under the Act, 2006, this Court is of the considered

opinion that the Police is well within its right to resort to the provisions

of IPC.

The Supreme Court in the case of State of Madhya Pradesh vs.

Rameshwar and Others, reported in (2009) 11 SCC 424 has held as

under:-

''48. Mr. Tankha's submissions, which were echoed by Mr. Jain, that the M.P. Co-operative Societies Act, 1960 was a complete Code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted, in view of the fact that there is no bar under the M.P. Co-operative Societies Act, 1960, to take resort to the provisions of the general criminal law, particularly when charges under the Prevention of Corruption Act, 1988, are involved.

49. The judgments referred to by Mr. Tankha regarding the tendency to convert civil disputes into criminal cases to pressurize the accused, are unimpeachable, but the same will not apply to the facts THE HIGH COURT OF MADHYA PRADESH 6 MCRC 11462 of 2021 Manish Gupta vs. State of MP

of this case where a conspiracy to cheat the Bank is alleged.''

Where the innocent consumers are being cheated by selling

adulterated or substandard or unfit eatables, then this Court is of the

considered opinion that the prosecution of the applicant for offence

under Sections 420 and 272 of IPC is permissible. It is not the case of

the applicant that he has already been punished under the Act, 2006.

Thus, the bar as contained under Section 26 of General Clauses Act

would not apply.

Considering the totality of the facts and circumstances of the

case, this Court is of the considered opinion that no case is made out

for quashing the FIR in Crime No.13/2021 registered at Police Station

Bairad, District Shivpuri for offence under Sections 420, 272 of IPC

and under Sections 51, 26(2)(ii) of the Act, 2006. Accordingly, the

application fails and is hereby dismissed.

Office is directed to send a copy of this order to Superintendent

of Police Shivpuri as well as to SHO, Bairad, District Shivpuri for

keeping the same in the Police Case Diary.

(G.S. Ahluwalia) Judge MKB

MAHENDRA KUMAR BARIK 2021.04.03 16:39:20 +05'30'