Supreme Court: In an appeal against the order passed by Madhya Pradesh High Court, wherein the Court held that there is no inconsistency between the penal provisions relating to misbranding under the Prevention of Food Adulteration Act, 1954 (‘the PFA’) and Food Safety and Standards Act, 2006 (‘the FSSA’) division bench of Abhay S. Oka* and Sanjay Karol, JJ. while setting aside the impugned judgment and order and quashing the criminal proceedings pending before the Special Judicial Magistrate, held that the FSSA will override the PFA to the extent of their inconsistency. Thus, as per the provisions of the FSSA, the violator who indulges in misbranding cannot be punished under the PFA and will be liable to pay penalty under Section 52 of the FSSA.
Background
Various provisions of the FSSA were brought into force on different dates. The PFA was repealed with effect from 5-08-2011, as provided in Section 97(1) of the FSSA.
The accused was the Director of Bharti Retail Limited, (‘BRL’), 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 on 29-11-2010 and purchased certain biscuit packets from the shop and sent the samples to the State Food Laboratory for analysis and testing. On 4-08-2011, a notification was issued under Section 97(1) of the FSSA notifying 5-08-2011 as the date on which the PFA shall stand repealed.
In Section 97, 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 Section 97(4) which provides for a sunset period of three years from 5-08-2011 for taking cognizance of the offences under the PFA. On 11-08-2011, sanction was granted to the Food Inspector to prosecute the Directors of Bharti under the provisions of the PFA.
The accused filed a petition under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’) challenging the order of cognizance. By the impugned judgment, the High Court dismissed the petition under Section 482 of CrPC. 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 three years from the date of repeal, the Magistrate was empowered to take cognizance in view of Section 97(4) of the FSSA. Being aggrieved by the said decision, the accused filed the present appeal.
Analysis:
The Court noted that the allegation against the accused was that the label on the accused’s food product was not in accordance with the PFA and the Rules framed thereunder. Therefore, the definition of ‘misbranded’ under Section 2(ix) will apply. The Court also took note of Section 3(zf), the corresponding provision under the FSSA, and said that sub-clause (A) (i) deals with food being offered or promoted for sale with false, misleading or deceptive claims upon the package’s label.
The Court further noted that the FSSA does not prescribe any punishment of imprisonment for misbranding, but the power under Section 52 is to impose a penalty, which may extend to Rupees 3 lakhs. Thus, under the provisions of the PFA, for misbranding, a person can be sentenced to imprisonment of a minimum six months with a fine of Rs. 1000 and more. However, for a similar violation under the FSSA, there is no penal provision in the sense that there is no provision for sentencing the violator to undergo imprisonment and to pay a fine. Under the FSSA, only a penalty of up to Rupees 3 lakhs can be imposed.
The Court noted that Sections 4, 5, 6, 7, 8, 9, 10, 87, 88, 91 and 101 were brought into force with effect from 15-October-2007. Section 3 of the FSSA which defines ‘misbranded food’ came into force on 28-05-2008. Section 97 which provides for repeal of the PFA was brought into force on 5-08-2011. Thus, as the penal provisions of the PFA were in force till 5-08-2011, and as the alleged offence was committed on 29-11-2010. Therefore, on that day, Section 52 of FSSA was in force as also the provisions of the PFA and the PFA Rules.
The Court further perused Section 97(4) of FSSA, a sunset clause, and noted that if an offence is committed under the PFA when the PFA was in force, cognizance of the crime can be taken only within three years from the date of commencement of the FSSA.
The Court said that on the day on which the alleged offence was committed, the offender could have been sentenced to imprisonment under Section 16 of the PFA, and under the FSSA, he could have been directed to pay the penalty up to Rupees 3 lakhs. The punishment under the PFA and the penalty under the FSSA cannot be imposed on the violator for the same misbranding because it will amount to double jeopardy, which is prohibited under Article 20(2) of the Constitution of India. Thus, when penal action can be taken under both statutes, the question is which will prevail.
The Court took note of Section 89 of the FSSA and said that the effect of Section 89 is that if there is an inconsistency between the provisions of the PFA and the FSSA, the provisions of the FSSA will have an overriding effect over the provisions of the PFA.
Thus, it held that in a case where after coming into force of Section 52 FSSA, if an act of misbranding is committed by anyone, which is an offence punishable under Section 16 of the PFA and which attracts penalty under Section 52 of the FSSA, Section 52 of the FSSA will override the provisions of the PFA. In such a situation, in view of the overriding effect given to the provisions of the FSSA, the violator who indulges in misbranding cannot be punished under the PFA and he will be liable to pay penalty under Section 52 of the FSSA.
The Court added that in the impugned judgment, the High Court has committed an error by holding that there is no inconsistency between the penal provisions relating to misbranding under the PFA and FSSA. Thus, the Court viewed that the High Court should have quashed the proceedings of the prosecution of the accused under Section 16 of the PFA.
[Manik Hiru Jhangiani v. State of M.P., 2023 SCC OnLine SC 1678, decided on 14-12-2023]
*Judgment Authored by: Justice Abhay S. Oka
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