CASE DETAILS v. STATE OF M.P

under both statutes, FSSA would prevail – High Court erred in holding that there is no inconsistency between the penal provisions relating to misbranding under the PFA and the FSSA – Hence, the High Court ought to have quashed the proceedings of the prosecution of the appellant u/s. 16 of the PFA – Impugned judgment and order set aside – Proceedings of the criminal case pending before the Magistrate quashed – Prevention of Food Adulteration Act, 1954 (PFA). [Paras 17, 18, 21] LIST OF CITATIONS AND OTHER REFERENCES T. Barai v. Henry Ah Hoe & Anr. [1983] 1 SCR 905:(1983) 1 SCC 177; Nemi Chand v. State of Rajasthan (2018) 17 SCC 448 – referred to. Hindustan Unilever Limited v. State of Madhya Pradesh [2020] 9 SCR 455:(2020) 10 SCC 751 – distinguished. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.3864 of 2023. From the Judgment and Order dated 13.05.2016 of the High Court of M.P., Bench at Indore in MCRC No.10611 of 2015. Appearances: Sajjan Poovayya, Sr. Adv., V P Singh, Kamal Shankar, Ms. Arti Singh, Atul N, Kshitiz Rao, Raghav Seth, Palash Maheshwari, Ms. Sanjanthi Sajan Poovayya, Aakashdeep Singh Roda, Ms. Pooja Singh, B P Singh, Advs. for the Appellant. Nirmal Kumar Ambastha, Pashupathi Nath Razdan, Mirza Kayesh Begg, Ms. Maitreyee Jagat Joshi, Astik Gupta, Advs. for the Respondent. JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT ABHAY S. OKA, J.

Leave granted. MANIK HIRU JHANGIANI v. STATE OF M.P 553 FACTUAL ASPECTS

Various provisions of the Food Safety and Standards Act, 2006 (for short, ‘the FSSA’) were brought into force on diff erent dates. The Prevention of Food Adulteration Act, 1954 (for short, ‘the PFA’) was repealed with eff ect from 5th August 2011, as provided in sub-section (1) of Section 97 of the FSSA.

The appellant was, at the relevant time, a Director of M/s. Bharti Retail Limited, (for short, ‘Bharti’), a company that is engaged in the business of operating retail stores under the name of ‘Easy Day’ having its outlets all over the country. A Food Inspector appointed under the PFA visited a shop owned by Bharti in Indore and purchased certain biscuit packets from the shop. The visit was made on 29th November 2010. On the next day, a panchnama was drawn, and the samples were sent to the State Food Laboratory, Bhopal, for analysis and testing. The report of the Public Analyst was received on 4th January 2011. On 4th August 2011, a notifi cation was issued under sub-section (1) of Section 97 of the FSSA notifying 5th August 2011 as the date on which the PFA shall stand repealed. In Section 97, and in particular in sub-section (1), there is a provision that notwithstanding the repeal of PFA, any penalty, forfeiture, or punishment incurred in respect of any off ences committed under the PFA shall not be aff ected by the repeal. Moreover, there is a sunset clause in the form of sub-section (4) of Section 97 which provides for a sunset period of three years from 5th August 2011 for taking cognizance of the off ences under the PFA. On 11th August 2011, sanction was granted to the Food Inspector to prosecute the Directors of Bharti under the provisions of the PFA. The Food Inspector fi led a charge sheet on 12th August 2011, and on the same day, cognizance of the off ence was taken by the learned Judicial Magistrate, and a bailable warrant was issued against the appellant. The appellant fi led a petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’) for challenging the order of cognizance. By the impugned judgment, the High Court dismissed the petition under Section 482 of CrPC. The High Court noted that the off ence alleged against the appellant was of misbranding which had taken place prior to the repeal of the PFA. Hence, within a period of three years from the date of repeal, the learned Magistrate was empowered to take cognizance in view of sub-section (4) of Section 554 SUPREME COURT REPORTS [2023] 16 S.C.R. 97 of FSSA. Being aggrieved by the said decision of the High Court, the present appeal has been preferred. SUBMISSIONS

The learned senior counsel appearing for the appellant made detailed submissions. The learned senior counsel fi rstly pointed out that Section 3 of the FSSA, which contains the defi nition of ‘misbranded food’ in clause (zf) of sub-section (1) thereof, was brought into force on 28th May 2008 and Section 52 of the FSSA, which provides for penalty for misbranding was brought into force with eff ect from 29th July 2010. Secondly, he pointed out that even Section 89 of the FSSA, which starts with a non-obstante clause providing that the FSSA shall have overriding eff ect notwithstanding anything inconsistent contained in any other law for the time being in force, was notifi ed on 29th July 2010. He submitted that, therefore, Section 52 of the FSSA, which provides for a penalty for misbranding, would prevail over the relevant provisions of the PFA, which make the misbranding an off ence punishable with imprisonment and a fi ne. He would, therefore, submit that with eff ect from 29th July 2010, the FSSA will govern misbranding and not the PFA.

The learned senior counsel also pointed out that the Prevention of Food Adulteration Rules, 1955 (for short, ‘the PFA Rules’) continued to remain in force till the repeal of the PFA. He pointed out that corresponding rules under the FSSA, namely, the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 came into force on 5th August 2011. He would, therefore, submit that Rule 32 of PFA dealing with standards for labelling continued to operate till 5th August 2011. He submitted that only because the Rules corresponding to Rule 32 of PFA Rules were not notifi ed on the date of commission of the off ence, the appellant could not have been prosecuted under the PFA for violation of a provision that was eclipsed by Section 89 of FSSA. His submission is that after 29th July 2010, the regime under the PFA dealing with misbranding will not apply.

He submitted that though Rule 32 of the PFA Rules, the violation of which has been alleged along with other off ences under the PFA, was in force on the date on which the alleged violation was committed, in view of Section 89 of FSSA, Rule 32 will have no application. Learned counsel pointed out that Section 97 of the FSSA was brought into force with eff ect MANIK HIRU JHANGIANI v. STATE OF M.P (cid:0)ABHAY S. OKA, J.(cid:1) 555 from 29th July 2010. He submitted that only because the Rules corresponding to Rule 32 of the PFA Rules were not notifi ed under the FSSA regime, the respondent could not have proceeded under the provisions of PFA in the light of Section 89 of the FSSA.

He relied upon a chart tendered across the Bar, which contains a comparison of the provisions regarding misbranding under both enactments. He pointed out that for violation of the provisions regarding misbranding, under PFA, the violator could be punished by imposing imprisonment of up to three years. However, under the FSSA, there is a provision for a levy of only a penalty up to Rupees 3 lakhs, as provided in Section 52. He submitted that when two statutes are operating in the fi eld prescribing a penalty for the same off ence and when an earlier statute contains a more stringent penalty or punishment, the provision in the earlier statute will stand repealed by necessary implication. He relied upon Clause (1) of Article 20 of the Constitution of India. He relied upon decisions of this Court in T. Barai v. Henry Ah Hoe & Anr.1 and Nemi Chand v. State of Rajasthan2. Lastly, he submitted that the High Court committed an error by relying upon the sunset clause under sub-section (4) of Section 97 since the same was not applicable in the facts of the case.

Learned counsel for the respondent- State fi rstly urged that the acts or omission constituting the alleged off ence took place when the PFA was not repealed though the FSSA was brought into force. Rule 32 of the PFA was also in force on that date, the violation of which has been alleged by the respondent. Learned counsel relied upon sub-section (4) of Section 97 of the FSSA, which permits cognizance of an off ence under the PFA before the expiry of three years from the date of the commencement of the FSSA. He would submit that considering the principles laid down in sub-section (4) of Section 97, the prosecution for violating the provisions of the PFA Act and the PFA Rules will certainly be maintainable. He submitted that after coming into force of the FSSA, all the provisions of PFA and the PFA Rules continued to apply. Inviting our attention to Section 52 of the FSSA, he submitted that even the Rules under the FSSA were not brought into 1 2