2018 (10) TMI 2065 - HC - Indian Laws

Prosecution over storing and exposing for sale huge quantities of noxious food upheld under IPC 273/328 despite FSS compliance claims

Prosecution for storing a huge quantity of prohibited food articles was challenged on the ground that only the Food Safety and Standards Act, 2006 applied ... Existence of multiple provisions to cover the offence - storing of prohibited articles in M.I.D.C. Waluj area at Plot No. X-388 - offence covered under Food Safety and Standards Act 2006 as well as under Indian Penal Code - provisions of Special Enactment with regard to sending copy of report to Commissioner etc. were not strictly followed - HELD THAT:- Recently in The State of Maharashtra and others Vs. Sayyed Hasan and others [2018 (9) TMI 1803 - SUPREME COURT], the Apex Court has considered the various provisions of Special Enactment, the provisions of Indian Penal Code and also the provision of section 26 of General Clauses Act and the Apex Court has laid down that in aforesaid Special Enactment, there is no specific bar to register the crime under the provisions of IPC even if the provisions of Special Enactment are attracted due to the offences committed. In view of these circumstances, this Court holds that there is no force in the contention that the crime ought not to have been registered. The provision of section 273 of IPC covers the seller and also the person who is exposing the articles for sale and those articles are noxious or in the state unfit for consumption as food. Both provisions can be used against the present applicants as huge quantity of prohibited food articles was found in their possession. There is copy of order issued by the Government in that regard dated 15.7.2016. The contention that the provision of section 328 of IPC cannot be used in the present case also is not acceptable. This provision shows that whoever administers to or causes to be taken by any person anything which is likely to cause hurt then he can be punished under provision of section 328 of IPC. Specific person to whom the thing is administered or the specific incident in which it was caused to be taken need not be mentioned in the case like present one. The persons who are indulging in to illegal activity like possessing and selling the substances which are likely to cause hurt are covered by the provision of section 328 of IPC. In private complaint, there is specific mention that permission was sought from the competent authority to file the private complaint and the order was received on 25.7.2014. Specific defence with regard to the period mentioned can be dealt with by the Trial Court as the Court will be required to consider not only the provisions of aforesaid Special Enactment, but also the provisions of IPC. Two cases need to be tried before the Special Judge appointed under the aforesaid Special Legislation and as there is chargesheet filed by police steps as provided under section 210 of Criminal Procedure Code can be taken. Both the proceedings stand dismissed. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether registration and prosecution for offences under the Indian Penal Code could validly proceed even though the conduct also attracted offences under the Food Safety and Standards Act, 2006 and the Rules/Regulations thereunder. (ii) Whether, on the allegations of seizure and possession of large quantities of prohibited food articles, the offences under Sections 272 and 273 IPC were made out against the accused persons. (iii) Whether, in such a case, Section 328 IPC was inapplicable for want of particulars of a specific person to whom the substance was administered or of a specific incident of administration. (iv) Whether the private complaint under the special enactment was liable to be quashed on the ground of non-compliance with procedural requirements, including permission from the competent authority, and how the two proceedings arising from the same incident were to be dealt with. 2. ISSUE-WISE DETAILED ANALYSIS (I) Parallel invocation of IPC notwithstanding applicability of the Food Safety and Standards Act, 2006 Legal framework (as discussed by the Court): The Court considered that there was no specific bar under the special enactment to registration of a crime and prosecution under the IPC, even if provisions of the special enactment were also attracted; it relied on the principle stated by the Supreme Court to that effect. Interpretation and reasoning: The Court rejected the contention that the police ought not to have registered the crime merely because the special enactment provided for offences relating to food safety. It held that absence of an express statutory bar permitted recourse to IPC provisions alongside the special enactment where the factual allegations supported those offences. Conclusion: Registration of the crime and continuation of prosecution under the IPC were held legally maintainable; the challenge seeking quashing on this ground failed. (II) Applicability of Sections 272 and 273 IPC to possession/exposure of prohibited food articles Legal framework (as discussed by the Court): The Court explained that Section 272 IPC covers persons responsible for adulteration of food so as to make it noxious and intended for sale, and Section 273 IPC covers sellers and persons exposing articles for sale where the articles are noxious or unfit for consumption as food. Interpretation and reasoning: On the allegation that a huge quantity of prohibited food articles was found in the possession of the accused persons in a storage premises, the Court held that the ingredients of Sections 272 and 273 could be invoked against them. The Court treated the possession of such large quantities in the given circumstances as sufficient at the quashing stage to attract these provisions. The Court also noted existence of a governmental prohibitory order relevant to the subject matter. Conclusion: The Court conclusively held that the challenge to invoking Sections 272 and 273 IPC had no force and refused to quash proceedings on that basis. (III) Applicability of Section 328 IPC without naming a specific victim or specific instance of administration Legal framework (as discussed by the Court): Section 328 IPC punishes whoever administers to, or causes to be taken by, any person anything likely to cause hurt. Interpretation and reasoning: The Court held that in a case involving illegal possession and sale of substances likely to cause hurt, the absence of identification of a specific person to whom the substance was administered, or a specific instance of administration, was not fatal at the stage of considering quashing. It reasoned that those indulging in possession and selling of such harmful substances could fall within the scope of 'causes to be taken' where the activity is of the kind likely to result in consumption and consequent hurt. The Court considered the harmful nature of such substances as a relevant circumstance supporting invocation of Section 328 IPC. Conclusion: The Court rejected the contention that Section 328 IPC was inapplicable and upheld its use against the accused persons on the allegations. (IV) Challenge to the private complaint on procedural compliance; handling of two proceedings from the same incident Legal framework (as discussed by the Court): The Court addressed that the private complaint recorded that permission of the competent authority was obtained before filing. It further stated that when there are two cases arising out of the same incident, the course under Section 210 of the Criminal Procedure Code could be adopted, and that the matters were to be tried before the Special Judge under the special legislation. Interpretation and reasoning: The Court declined to quash the private complaint on the asserted non-compliance with procedural requirements, noting that the complaint itself contained a specific assertion of having sought and received permission from the competent authority. Any defence relating to the timing/period mentioned was held to be a matter for the trial court. Given that both proceedings arose from the same incident and overlapped in parties and allegations, the Court indicated that Section 210 CrPC steps could be taken to address the parallel proceedings. Conclusion: The Court refused to quash the private complaint on the alleged procedural lapses, leaving the defence on such aspects to be considered at trial, and held that the statutory mechanism for coordinating the two proceedings could be invoked. FINAL OUTCOME The Court dismissed both quashing applications, holding that IPC offences could proceed alongside offences under the Food Safety and Standards Act regime, that Sections 272, 273, and 328 IPC were prima facie attracted on the allegations, and that procedural objections to the private complaint did not warrant quashing at this stage.