Allahabad High Court
Raja Singh And Another vs State Of Up And Another on 9 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 30.05.2024 Delivered on 09.07.2024 Neutral Citation No. - 2024:AHC:111820 Court No. - 44 Case :- APPLICATION U/S 482 No. - 11217 of 2024 Applicant :- Raja Singh And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Singh Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard learned counsel for the applicants and Sri Rajeev Kr. Singh, learned A.G.A. for the State.
2. The instant application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 16.11.2021 passed by Special Judge Food Safety & Standards Act/ Additional Sessions Judge, Court No.9, Jhansi in Sessions Case No. 936 of 2021, under Section 58, 59 (iii), 63 of the Food Safety & Standards Act, 2006 (hereinafter referred to as 'Act, 2006'), Police Station Orai, District Jalaun as well as Non-bailable Warrant dated 10.11.2023 issued by Additional District Judge/FTC-14th, Jhansi.
3. Facts giving rise to the present case are that applicant No.2 is the proprietor of a firm, named as M/s Balaji Traders Orai while applicant No.1 is the employee of the said firm of applicant No.2. The licence in Form - C under the Act, 2006 was also issued in the name of the firm of applicant No.2. In the above licence, applicant No.2 was mentioned as a person in charge of the operation of the firm and that licence is valid till 16.7.2024. An inspection was made by the Food Security Officer on 6.2.2020 in the manufacturing unit of applicant No.2 where the applicant No.1, who is an employee of the firm of applicant No.2 was present. In the presence of applicant No.1, 17 kg. of kati supari was found in the stock. Thereafter, 2 kg. of the kati supari was purchased from applicant No.1 by paying its price. On the spot, the format of Form 5-ka was prepared out of which two samples were given to applicant No.1 and one sample was sent to the concerned laboratory for examination. It is claimed by the applicants that their firm is licence holder to manufacture pan masala and supari under the Act, 2006 which is valid up to 16.7.2024. On the basis of inspection of the Food Inspector on 6.2.2020, the sample of kati supari was taken from the premises of the applicants and thereafter, on the basis of the report of the food analyst, the impugned complaint was filed. In the impugned complaint, it is mentioned that the sample of kati supari contained tobacco. Therefore, the same was of sub standard quality and not fit for use. In the complaint it is further mentioned that the sample of kati supari was prepared in violation of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction of Sale) Regulations, 2011. The learned Magistrate, after receiving the aforesaid complaint, summoned the applicants, which is under challenge.
4. The contention of learned counsel for the applicants is that kati supari is a tobacco product, therefore, the proceeding under the Act, 2006 is absolutely erroneous. In support of his contention, learned counsel for the applicants has relied upon the judgement of coordinate Bench of this Court passed in Application u/s 482 No. 9147 of 2023 (Manish Gupta vs. State of U.P. and another) in which it is observed that the sample of packet of baba supari is tobacco product and not a food item. It is further submitted that the tobacco product is not prohibited from selling, but it is regulated by Cigarette and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Suppply and Distribution) Act, 2003 (hereinafter referred to as "COTPA, 2003'). It is lastly submitted that even if it is admitted that kati supari is a food item, even then, applicants have valid licence. Therefore, invoking the provision of the Act, 2006 on the ground that at the time of inspection, the applicants could not show the licence is also incorrect, hence erroneous.
5. Per contra, learned A.G.A. has submitted that kati supari is food item. Therefore, there is no illegality in the impugned proceeding. It is further submitted that at the time of inspection, the applicants could not show the licence for the production of food item, therefore, the provision of the Act, 2006 was invoked.
6. Learned A.G.A. had filed counter affidavit which was formal in nature, therefore, learned counsel for the applicants did not file rejoinder affidavit on the ground that the same was formal in nature.
7. After hearing the rival submissions of learned counsel for the parties, a sole question arises whether the product in question i.e. supari (betel nut) is a tobacco product or it comes within the definition of food.
8. Learned counsel for the applicants has submitted that as the supari is a tobacco product, its sale and manufacturing will be covered by the COTPA, 2003. Therefore, proceeding against him, under the Act, 2006, is illegal. The issue whether the supari (betel nut) is a tobacco product or a food item has already been decided by this Court in Application u/s 482 No. 11772 of 2024 (Jagdish Prasad and another vs. State of U.P. and another) and this Court in that judgement has held that supari is a food product and not the tobacco product. Therefore, provision of Act, 2006 will be applicable if there is any addition or mixture of tobacco in supari. Paragraph Nos. 20 and 23 of the judgement in Jagdish Prasad and another (supra) is quoted as under:-
"20. Therefore, from the conjoint reading of Section 3(1)(j) and 3(1)(zk) of the Act, 2006 as well as Regulation 2.3.55 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, it is clear that betel nut or supari is a primary food product, hence would come within the category of food and not the tobacco product.
23. Therefore, from above analysis, it is clear that mixing of tobacco in any food item including the betel nut or supari is prohibited as per Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction of Sale) Regulations, 2011 and the same would be punishable under Section 59 of the Act, 2006."
9. In view of above, the contention of learned counsel for the applicants that supari is a tobacco product and not a food item is misconceived, hence rejected.
10. In the present case, the license to the applicants of the firm was given under the Act, 2006 with the condition that they will conform to the Act, 2006 while manufacturing or producing the supari, therefore, contention of counsel for the applicants that the provision of Act, 2006 will not be applicable while manufacturing or producing supari, is misconceived.
11. In the present case, a sample of Supari, recovered from the manufacturing unit of the applicants, had tobacco as an additive for organo leptic purpose, which is in violation of the Act, 2006 as the betel nut or supari is a primary food as per Section 3(1)(zk) of the Act, 2006, therefore, same is offence under the Act 2006 and the proceeding under the Act, 2006 against the applicants is absolutely correct and invocation of the COTPA, 2003 in the present case does not apply.
12. So far as the contention of learned counsel for the applicants that the applicants have valid licence for manufacturing supari (betel nut), even then, provisions of the Act, 2006 have been invoked against them, treating them as manufacturers of the product of suprari without licence is concerned, same can be raised at the time of framing of charges.
13. In view of the above analysis, this Court finds that there is no illegality in the impugned proceeding. Therefore, present application fails, having no merit.
14. Accordingly, the application is dismissed.
Order Date :- 9.7.2024 Vandana