IMPORTANT POINT
Misbranding – Punishment under PFA and penalty under FSSA cannot be imposed on violator for same misbranding because it will amount to double jeopardy which is prohibited under Article 20(2) of Constitution of India.

JUDGMENT :

ABHAY S. OKA, J.

1. Leave granted.

FACTUAL ASPECTS

2. Various provisions of the Food Safety and Standards Act, 2006 (for short ‘the FSSA’) were brought into force on different dates. The Prevention of Food Adulteration Act, 1954 (for short ‘the PFA’) was repealed with effect from 5th August 2011, as provided in sub-section (1) of Section 97 of the FSSA.

3. The appellant was, at the relevant time, a Director of M/s. Bharti Retail Limited (for short ‘Bharti’) a company that is engaged in the business of operating retail stores under the name of ‘Easy Day’ having its outlets all over the country. A Food Inspector appointed under the PFA visited a shop owned by Bharti in Indore and purchased certain biscuit packets from the shop. The visit was made on 29th November 2010. On the next day, a panchnama was drawn, and the samples were sent to the State Food Laboratory, Bhopal, for analysis and testing. The report of the Public Analyst was received on 4th January 2011. On 4th August 2011, a notification was issued under subsection (1) of Section 97 of the FSSA notifying 5th August 2011 as the date on which the PFA shall stand repealed. In Section 97, and in particular in sub-section (1), there is a provision that notwithstanding the repeal of PFA, any penalty, forfeiture, or punishment incurred in respect of any offences committed under the PFA shall not be affected by the repeal. Moreover, there is a sunset clause in the form of sub-section (4) of Section 97 which provides for a sunset period of three years from 5th August 2011 for taking cognizance of the offences under the PFA. On 11th August 2011, sanction was granted to the Food Inspector to prosecute the Directors of Bharti under the provisions of the PFA. The Food Inspector filed a charge sheet on 12th August 2011, and on the same day, cognizance of the offence was taken by the learned Judicial Magistrate and a bailable warrant was issued against the appellant. The appellant filed a petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) for challenging the order of cognizance. By the impugned judgment, the High Court dismissed the petition under Section 482 of Cr.P.C. The High Court noted that the offence alleged against the appellant was of misbranding which had taken place prior to the repeal of the PFA. Hence, within a period of three years from the date of repeal, the learned Magistrate was empowered to take cognizance in view of sub-section (4) of Section 97 of FSSA. Being aggrieved by the said decision of the High Court, the present appeal has been preferred.

SUBMISSIONS

4. The learned senior counsel appearing for the appellant made detailed submissions. The learned senior counsel firstly pointed out that Section 3 of the FSSA, which contains the definition of ‘misbranded food’ in clause (zf) of sub-section (1) thereof, was brought into force on 28th May 2008 and Section 52 of the FSSA, which provides for penalty for misbranding was brought into force with effect from 29th July 2010. Secondly, he pointed out that even Section 89 of the FSSA, which starts with a non-obstante clause providing that the FSSA shall have overriding effect notwithstanding anything inconsistent contained in any other law for the time being in force, was notified on 29th July 2010. He submitted that, therefore, Section 52 of the FSSA, which provides for a penalty for misbranding, would prevail over the relevant provisions of the PFA, which make the misbranding an offence punishable with imprisonment and a fine. He would, therefore, submit that with effect from 29th July 2010, the FSSA will govern misbranding and not the PFA.

5. The learned senior counsel also pointed out that the Prevention of Food Adulteration Rules, 1955 (for short ‘the PFA Rules’) continued to remain in force till the repeal of the PFA. He pointed out that corresponding rules under the FSSA, namely, the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 came into force