Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2016 Supreme(Bom) 326

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
A.V. NIRGUDE & INDIRA K. JAIN, JJ.
Ganesh Pandurang Jadhao - Petitioners
Versus
The State of Maharashtra, Through The Principal Secretary, Food & Drugs Deptt., Mantralaya - Respondents
Criminal Writ Petition No. 1186, 615, 1369, 1992, 1993, 2271, 6982 of 2014
Criminal Writ Petition No. 1027, 856, 1183, 1368, 4395, 4517 of 2015
Decided on : 4.3.2016

Advocates:
Advocate Appeared:
Mr. R.R. Mantri, Advocate for the Petitioners
Mrs. A.V. Gondhalekar, A.P.P. for the Respondents – State

Important Point—Manufacturing, possessing Gutka and Pan Masala would not amount to administering poison.

Headnote:(A) Food and Safety Standards Act, 2006—Sections 26 and 30—Indian Penal Code, 1860—Section 188—Transportation of Pan Masala—Commissioner is a public servant and he has issued an order and order is breached and disobeyed by applicants and petitioners—But, this disobedience apparently does not tend to cause breach of law and order---Commissioner's order is not an order contemplated under Chapter 10 of IPC---Besides, prohibitory order issued under Section 30 of FSS Act, 2006 and its violation would amount to offence only under Section 55 of FSS Act, 2006---This specific provision is made in a special enactment which is a code in itself---It would not permit any one to apply Section 188 of Indian Penal Code to such breach or violation. Section 188 of Indian Penal Code is not applicable to facts of case.
(B) Food and Safety Standards Act, 2006—Sections 26 and 30—Indian Penal Code, 1860—Sections 372, 373, 188 and 328—Transportation of Pan Masala—Manufacturing, possessing Gutka and Pan Masala would not amount to administering poison—Gutka or Pan Masala are not subjected to food analysis—Commissioner opined that in its sale etc. is not in public interest—This opinion is based on various reports but not report of Food Analyst appointed under provisions of FSS Act—It cannot be said that Gutka and Pan Masala are stupefying, intoxicating or unwholesome drug—Besides offering these items of Food would not amount to intention to cause hurt—Provisions of Section 328 of Indian Penal Code to present cases is impermissible—Action taken by Police against petitioners / applicants under Sections 372, 373, 188 and 328 of Indian Penal Code declared to be illegal—Complaints quashed.
Result—Criminal Writ Petitions and Criminal Applications allowed.

Judgement Key Points

What is the legality of using Section 328 IPC for Gutka/Pan Masala cases under the FSS Act, 2006?

What is the appropriate forum and mode of action for violations of prohibitory orders under the FSS Act, 2006?

What are the consequences for police actions under Sections 372, 373, 188 and 328 IPC when dealing with Gutka/Pan Masala under the FSS Act?

JUDGMENT (Per A.V. Nirgude, J.) :-

1. All these Criminal Applications and Criminal Writ Petitions are taken up for final hearing by consent of all the parties, and since the point raised in all these cases is more or less similar, they are disposed of by this common judgment. For the purpose of disposal of the cases, we would utilise facts of Writ Petition No. 1027 of 2015 as representative. We understand that in most of the cases the facts are similar and the petitioners / applicants are similarly placed.

2. On 14th May, 2015, the petitioner was found transporting larg quantities of pouches of tobacco which is called 'Gutka' in common parlance, pouches of pan-masala in a truck. The truck was stopped by respondent no. 4, who is Food Safety Officer of Osmanabad district. He alleged that he not only seized the goods but even lodged a police complaint alleging that the petitioner had committed violation of Government Notification, dated 15th May, 2014, prohibiting certain acts pertaining to Gutka/Pan Masala and thereby committed offence punishable under Sections 26 and 30 of the Food and Safety Standards Act, 2006 (in short, FSS Act, 2006). He further alleged that the petitioner was also liable to be prosecuted and punished for offences punishable under Sections 272, 273, 188 and 328 of the Indian Penal Code. The police registered offence vide a Crime No. 70 of 2015 and arrested the petitioner. The petitioner secured bail, but asserted that lodging of complaint and registration of crime for offences punishable under provisions of Indian Penal Code was illegal. According to them, the offence punishable under Section 328 of the Indian Penal Penal Code is not made out against them.

3. It is an admitted fact that the FSS Act, 2006, empowered Food and Safety Commissioner, State of Maharashtra, under Section 30 of the FSS Act, 2006, prohibiting sale, manufacture etc. of some commodities if he is satisfied that prohibition would be in “public interest”. Since 2013, the Commissioner has been promulgating year to year order prohibiting manufacture of scented supari, tobacco, kharra etc. for a period of one year. He also mentioned in the order that the violation would entail penalty up to Rs.2,00,000/-. On the day of incident, the prohibitory order was in force. It is, therefore, clear that admittedly the petitioners were found to have committed violation of the prohibitory order. (In the case it was found that the petitioner was transporting gunny bags containing Pan-masala packages and tobacco pouches. Transporting such prohibited committee apparently amounted violation of the prohibitory order and the petitioner was liable for certain penal action.)

4. The question is, what action in such situation is permissible in the light of provisions of the FSS Act, 2006? In order to find out answer to this question, one must read the provisions of the Food Safety and Standards Act, 2006. This Act come into force in August, 2006. It consolidated the laws relating to food, and for establishing the food, safety and standards authority of India. Said Act was made also for laying down science-based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import. One of the important object of this Act was to ensure that public at large should get safe and wholesome food. The Act incorporated salient provisions of the Prevention of Food Adulteration Act, 1954 and is also based on international legislations, instrumentalities and Codex Alimentaries Commission which related to food safety norms. The Act contains detail statements of objects and reasons.

5. The Act defined term 'Adultrant'. It means, any material which is or could be employed for making the food unsafe or substandard, misbranded or would contain extraneous matter (ramnants of raw material, packaging material etc.).

The Act also define term 'food'. It says that 'food' means any substance processed or otherwise which is intended for human consumption.

Click Here to Read the rest of this document