TaxTMI 
TaxTMI 
2023 (2) TMI 654
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....t the baby food was adulterated and improper as insect was found inside the pack. Upon receipt of information Bizpore P.S. General Diary No. 270 dated 5th April, 1998 was recorded and police visited the residence of Kausik Mitra, seized two open pack of Lactogen-2 and the cash memo. The police officer, thereafter, visited the premises of M/s Niyogi Brothers and seized 45 packets of Lactogen-2 out of which 3 packets were taken as sample. The open packet and sample packet had then been sent to the Director, West Bengal Public Health Laboratory, Government of West Bengal for analysis and Public Analyst (Food & Water) vide his report dated 13th August, 1998 opined that the opened refill pack seized from Kausik Mitra was unfit for human consumption and tested unsatisfactory for bacteriological test. Pursuant to such report Bizpore P.S. Case No. 130 Dated 18th September, 1998 was registered under Section 272/273 of the Indian Penal Code which gave rise to G.R. Case No. 3181 of 1998. After investigation the Investigating Officer submitted the charge sheet under Section 272/273 of the Indian Penal Code, along with other accused persons against the petition no. 2 Mr. C.M. Donati showing him....
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....deals with a situation when law enacted by Parliament and enacted by the State Legislature are repugnant to each other with regard to the subject enumerated in the concurrent list, the Central Law will prevail over the State legislation. Adulteration of Food Staff and other goods finds place under entry 18 of the Concurrent list. The West Bengal Amendment was on the subject matter of adulteration and entry 18 of the Concurrent list was the source of such legislation. Therefore, by necessary implication the West Bengal Amendment Act, 1973 stood repealed with the introduction of Act 34 of 1976 in the Parliament amending thereby P.F.A. Act 1954 with effect from 1st April, 1976. 6. To buttress his argument Mr. Batra refers to a decision of Hon'ble Supreme Court pronounced in the case of SAVERBHAI AMAIDAS VS. THE STATE OF BOMBAY reported in AIR 1954 SC 752 wherein Hon'ble Court held:- "7. This is, in substance, a reproduction of section 107(2) of the Government of India Act, the concluding portion thereof being incorporated in a proviso with further additions. Discussing the nature of the power of the Dominion Legislature, Canada, in relation to that of the Provincial Legislature, in....
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.... prevail over that of the State. 8. xxxxxx 9. xxxxxx 10. xxxxxx 11. It is true, as already pointed out, that on a question under article 254(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under article 254(2) whether the further legislation by Parliament is in respect of the same matter as that of the State law. We must accordingly hold that section 2 of Bombay Act No. XXXVI of 1947 cannot prevail as against section 7 of the Essential Supplies (Temporary Powers) Act No. XXIV of 1946 as amended by Act No. LII of 1950." 7. Consequent upon such effect of implied repeal of West Bengal Amendment Act relating to P.F.A. Act as well as Sections 272 and 273 of the I.P.C., the punishment under Sections 272 and 273 of the I.P.C. thereby reverted to six months in the State of West Bengal and offence under Sections 272 and 273 of the I.P....
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....e to be kept with the local health authority. In view of Section 10 of the P.F.A. Act a qualified person is only authorized to collect sample following the procedure laid down under the statute for sampling and dispatch. Therefore, the provision of Section 13 of the P.F.A. Act read with Rules 16 and 17 are required to be followed. The right of a person from whom sample has been taken, to apply for re-analysis is secured under Section 13 (2) of the P.F.A. Act and report of re-analysis may supersede the analysis report in view of Sub-Section 5 of Section 13 of the Act. Complaint can only be filed by authorized person after obtaining written consent from the competent authority. In view of Section 20 of the P.F.A. Act even a right has been given to the purchaser to request for analysis of any food product by a public analyst under Section 12 of the P.F.A. Act and in absence of any such prescribed procedure the general act cannot be set into motion. It would amount to violation of Section 5 of the Indian Penal Code which enunciates:- "Section 5 in The Indian Penal Code 5. Certain laws not to be affected by this Act.-Nothing in this Act shall affect the provisions of any Act for pu....
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....ugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power under Article 142 of the Constitution of India in this regard. VI. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police officers would have made arrests in regard to offences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, will operate with effect from the date of this Judgment. VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the CrPC, but also immediately report the arrests to their superior Officers." Hon'ble Apex Court in JEEWAN KUMAR RAUT VS. CBI reported (2009) 7 SCC 526 held:- "26. It is a well-settled principle of law that if a special statute lays down procedures, the ones laid down under....
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....(UOI) & ORS. reported in (2016) 9 SCC 699 wherein it is held:- "Taking note of the seriousness of the offence, State of Uttar Pradesh has amended Section 272 of the Indian Penal Code by enhancing the sentence to imprisonment for life and also fine. Similar amendment has been made by the States of West Bengal and Orissa. State of Madhya Pradesh in its counter affidavit has stated that it has also decided to amend Section 272 of IPC by enhancing the sentence to imprisonment for life with or without fine and consequential amendments to Schedule II to the Criminal Procedure Code. Considering the seriousness of the offence, the Supreme Court vide its orders dated 05.12.2013 and 30.01.2014 has directed similar amendments be made in other States as well. Vide its order dated 10.12.2014, this Court directed Union of India to come up with necessary amendments in Food Safety and Standards Act, 2006 and also in the Indian Penal Code to make penal provisions at par with State Amendments." 15. It is further contended by learned Public Prosecutor that there is no bar to hold trial of offence under two different enactments but the bar is only with regard to the punishment of the offender twic....
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....at where an act repealed provides substantially for all the matters contained in the act, effecting repeal, there is correspondence between the two acts, the earlier act would stand repealed. It is not necessary that there must be complete identity between the repealing act and act repealed in every aspect. However, there should be no correspondence and no repeal if the two acts are substantially of different scopes. Sections 272 and 273 of the I.P.C. cannot be said to be corresponding to the provisions of the P.F.A. act and, therefore, without any hesitation it should be held that Sections 272 and 273 are still in force and they can be held to have been repealed by Section 25 (1) of the P.F.A. Act. 17. According to Mr. Mukherjee, learned Public Prosecutor the provision of Section 272 and Section 273 of the I.P.C. are not repugnant to the provision of Section 16 (1A) of the P.F.A. Act. To bring home his argument Mr. Mukherjee relies upon judgement of the Coordinate Bench of this Court in the case of BHASKAR TEA & INDUSTRIES LTD., CALCUTTA VS. STATE reported in 2007 SCC ONLINE CAL 662 AND (2008) 1 CHN 298 wherein His Lordship Hon'ble Justice Partha Sakha Datta (as His Lordship the ....
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....Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974 ), s. 2 end Sch. (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years." 21. From the attending facts of the case it is found that the alleged offence known to be committed on 18th August, 1998 when Public Analyst report confirmed that the content was adulterated food while cognizance was taken by the Trial Court on 29th June, 2000 after the prescribed period of the limitation which ex-facie is not permissible under the law and on this score alone the prosecution should be quashed. 22. Generalia specialibus non derogant is a maxim used for interpretation of statute which means general laws do not prevail over special law. When two provisions of law one being a general law and other being a special law governed a matter, in case of any repugnancy the prior special law cannot be presumed to be repealed by the later general law unless there is a clear intention to make a rule of universal application by superseding the earlier special law is evident fro....
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.....R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concer....