The main legal point established in the judgment is the interpretation of the definition of 'food' under the Food Safety and Standards Act, 2006 and the concurrent application of the Act of 2006 and the Act of 2003 in relation to tobacco products used for chewing.

The sole question which arises for consideration is whether ‘gutkha’ is a food article or not, under the provisions of Food Safety and Standards Act, 2006 (in short, ‘Act of 2006’)?

2. The applicant has preferred this application under Section 482 of the Code of Criminal Procedure to challenge the order dated 06.12.2016 passed by the Court of Judicial Magistrate First Class, Guna, in Criminal Case No. 1931/2013, whereby the application preferred under Sections 26, 27 of the Act of 2006 has been rejected by the Trial Court and the Trial Court has proceeded with the prosecution against the present applicant.

3. The facts leading to filing of the present case are that the Food Safety Officer (in short, ‘FSO’), District Guna, carried out inspection of a food establishment which is involved in the sale of paan masala, ‘gutkha’, supari and other allied products. The FSO upon suspecting the quality of the food product to be substandard proceeded to purchase of ‘Vimal Gutkha’ and the same was forwarded to the State Food Testing Laboratory (in short, ‘Lab’) for its analysis. According to the report issued by the Food Analyst, the sample was found to be sub-standard, unsafe as also the same was misbranded. Consequently, a complaint was filed before the Competent Court and the Competent Court framed charges against the present applicant on 09.07.2015 for commission of offences punishable under Sections 26, 27 and 31 (1) read with Section 58, 59 and 63 of the Act of 2006. Subsequently, the applicant preferred an application under Sections 26, 27 of the Act of 2006 and the bone of contention before the Trial Court was that the article in question is ‘gutkha’ and the same is not covered by the provisions of the Act of 2006 as there is a Special Act, namely, The Cigarettes And Other Tobacco Products (Prohibition of Advertisement And Regulation of Trade And Commerce, Production, Supply And Distribution) Act, 2003 (in short, ‘Act of 2003’), which will prevail over the provisions of the Act of 2006 as the same is a Special Act. Therefore, it was argued before the Trial Court that the prosecution lodged under the Act of 2006 is misconceived and deserves to be dropped.

4. The Trial Court proceeded to observe that the contention about the applicability of the Act of 2003 is misconceived and the fact that once the Criminal Court proceeds to take cognizance in the matter, then there is no provision under the Act of 2006 or under Cr.P.C. for review of such order taking cognizance. Consequently, the application was dismissed and the matter was fixed for recording of Prosecution Evidence.

5. The rejection of the application has been assailed before this Court on the same very ground that the seized article is not a food article under the Act of 2006 and therefore, the prosecution lodged may be quashed. In support of this contention, the learned counsel for the applicant has placed heavy reliance upon the judgment pronounced by the Allahabad High Court in the case of Himachal Marketing Company v. State of Uttar Pradesh, 2012 FAJ 78 (Allahabad), wherein according to the applicant, the Allahabad High Court has concluded that ‘gutkha’ is not a food product.

6. Per contra, the learned counsel for the respondent pointed out that if the interpretation suggested by the applicant is accepted, then the same would have drastic consequence on the public health because large number of people indulge in consumption of ‘Gutkha’ or allied products. Therefore, the application deserves to be dismissed.

7. The most apt manner to deal with the contention canvassed by the learned counsel for the applicant would be to first discuss or dwell into judgment of the Allahabad High Court in Himachal Marketing Company (supra). It would be pertinent to mention here that the judgment of other High Courts are not binding although they have persuasive value and therefore, the same are required to be dealt with [See: Pradeep J. Mehta v. CIT, (2008) 14 SCC 283]. The placitum of the jud