CRIMINAL REVISIONAL JURISDICTION v. THE STATE OF WEST BENGAL & Anr.

MJN India. A private complaint was filed by one Ms. Ayesha Ali with the Opposite Party no. 2 Police Station alleging that she was feeding Enfamil A+ Stage 3 to her baby and black dust particles were found (mould) .Further on

8.11.2015 she bought Enfamil A+ Stage 3 and had claimed that on opening the container, she found the live insect and she apprehend that due to the inferior quality of food her baby suffered earlier.. The complaint was lodged on

10.11.2015 and it was registered on the same day under the aforesaid Section against manufacturing Company of Enfamil A+ Stage 3 (1) Manufacturing Company of Enfamil A+ Stage 3 and (2) Med plus that is the shop from where complainant alleged to have purchased the product. Nearly 4 years after registration of FIR a notice was sent to MJN India from the Investigation Officer under Section 91 of Cr.P.C. and a detailed reply was given on

05.06.2019 and after 2 years from such reply a notice was issued under Section 161 of Cr.P.c to the Director of MJN India and MJN approached this High Court under Section 482 of Cr.P.C for quashing of the said complaint and further proceeding was stayed for 8 weeks. After that on 07.09.2021 the charge sheet was submitted against three persons as accused and name of MJN is dropped and the present petitioner is included as accused no.3. Other accused are the distributor and the owner of the medicine shop. The Learned Trial Court took cognizance on 07.10.2021 and also issued summons against which the present revisional application has been filed by the petitioner. Submissions

3. The Learned Senior Counsel appearing on behalf of the petitioner Mr. Sudipta Sarkar made arguments raising the following points ; The sections invoked in the charge sheet are not maintainable since it was alleged violation of FSS Act as the specific allegation in the FIR was that Enfamil A+ Stage 3 is the sub-standard and unsafe and hence there is no basis to invoke the provision of the Indian Penal Code as the FSS Act overrides the Indian Penal Code. Section 89 of FSS Act overrides other enactment and in this regard placed reliance on the judgement of the Hon’ble Supreme Court in Ramnath versus State of UP1 Paragraph 25 to 27.It is further submitted in the decision of Ramnath (Supra) the judgement of the Hon’ble Allahabad High Court in Pepsico India Holding Private Limited and Another vs. State of UP and 1 2024 SCC Online SC 177 Ors.2 was considered where quashed the prosecution under Section 272 and 273 of Indian Penal Code on the ground that with effect from 29.07.2010 when Section 97 of FSS Act came into force ,action with respect to quality of food only had to be taken by statutory authorities created under the FSS Act and Police do not have the power to invoke Indian Penal Code.

4. The other point raised by the Learned Senior Counsel is that the cognizance taken by the Trial Court is barred by the period of limitation prescribed under Section 77 FSS Act. In terms of the Section 77 no court shall take cognizance of an offence under the Act after the expiry of the period of 1 year from the date of commission of an offence. Therefore even if it is assumed without admitting that Opposite Party no. 2 has jurisdiction to file a complaint in respect of offences under FSS Act and it came to be filed after obtaining extension from the Commissioner of Food Safety under proviso to Section 77 of FSS Act the Learned Trial Court took cognizance beyond the period of limitation prescribed under Section 77 of FSS Act. The complainant was supposed to have purchased the product on 08.11.15 and FIR was registered on 10.11.25 and the charge sheet was filed more than 6 years on 07.09.21 and the cognizance was taken after 6 years from the date of alleged crime of offence hence it is hit by the limitation prescribed in Section 77 of FSS Act.

5. It is further argued that police authorities do not have the jurisdiction to register FIR under the FSS Act since there is specific provision under the 51, penalty for sub-standard food and Section 59 which provides for punishment for sale of unsafe food and also that violation or contravention results in non- grievance for a term which may extent to 1 year and with fine which may 2 (2010) SCC Online ALL 1708 extent to 3 Lakhs Rupees. Therefore the FIR and the charge sheet is without jurisdiction in term of Section 29(1) of FSS Act and food authorities and State food authorities alone are responsible enforcement of FSS Act. Since exclusive jurisdiction is vested on food authorities, opposite party no. 2 has no jurisdiction. In addition under Section 42 of the FSS Act only the designated Officer / Food Safety Officer to initiate prosecution that is opposite Party no. 2 not being the designated authority under the said act has not and could not have sought for or obtained sanction from Commissioner of Food Safety and in fact indisputable has not obtained any such sanction hence Opposite Party no. 2 cannot invoke Section 51 and 59 of the FSS Act in the FIR and the charge sheet. The last argument as advanced on behalf of Mr. Sarkar the Learned Senior Advocate that vicarious liability cannot be cast against the petitioner, as there is nothing on record in the FIR or in the charge sheet with respect to the role of the petitioner in the alleged commission of the offence .Merely Enfamil A+ Stage 3 being sub-standard or un safe food and merely because the petitioner was the managing Director of MJN India at the relevant time he has been made an accused in the charge sheet even without including the company as an accused. Reliance is placed on Sunil Bharti Mittal vs Central Bureau of Investigation3 (relevant para 42 to 44). In addition the Hon’ble Supreme Court in Thermax Limited and Others vs K.M. Jony and Ors.4 and GHCL Employees stock option trust vs. Kranti Sinha5 where it was held that there is no concept of vicarious liability under Indian Penal Code and specific allegation must be made against every accused. The learned Senior