Madhya Pradesh High Court
Dharmendra vs The State Of Madhya Pradesh on 22 April, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
NEUTRAL CITATION NO. 2025:MPHC-IND:11095
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 22nd OF APRIL, 2025
MISC. CRIMINAL CASE No.31189 OF 2023
Dharmendra & Another
Versus
The State of M.P. & Another
Appearance:
Shri Vinay Gandhi, Advocate for the petitioners.
Shri Amit RaVal, Govt. Advocate for the respondent No.1/State.
__________________________________________________________
ORDER
1. This petition under Section 482 of Code of Criminal Procedure, 1973 is filed for quashing of order framing charge dated 30.05.2022, passed by the learned Judicial Magistrate First Class, Khargone(West Nimar), quashment of FIR registered at Crime No.452/2019 dated 02.09.2019, P.S. Barwah, District Khargone and charge-sheet dated 27.12.2019 filed on 27.06.2020, for offence punishable under Sections 272, 273, 420 of IPC and Section 26(2)(ii) read with Section 51 of Food Safety and Standards Act, 2006(in short "FSSA, 2006").
2. The exposition of the facts giving rise to the present petition is as 2 NEUTRAL CITATION NO. 2025:MPHC-IND:11095 under :-
A. Mr. Narsingh Solanki, Food Safety Officer(complainant), Food and Drugs Administration, Khargone, District Khargone(M.P.) submitted a written complaint dated 02.09.2019 to SHO, P.S. Barwah, District Khargone(M.P.) stating that he had conducted inspection of firm M/s.Patidar Milk Products at Barwah on 27.07.2019. He had taken samples of paneer and ghee, which were forwarded to the State Food Testing Laboratory, Bhopal(M.P.). The food analyst of the State Food Testing Laboratory opined that the samples of paneer and ghee are sub- standard under Section 3(1)(zx) of the Food Safety and Standards Act, 2006. The seller/Manager Dharmendra Patidar and Owner/ Licensee of the shop Rahul Jirati have sold sub-standard food items and committed cheating with the customers. On such allegations, the PS Barwah, District Khargone registered FIR at Crime No.452/2019 for offence punishable under Sections 272, 273, 420 of IPC and Section 26(2)(ii) read with Section 51 of Food Safety and Standards Act, 2006 against accused (petitioners) Dharmendra Patidar and Rahul Jirati. The statements of witnesses were recorded. The petitioners were arrested on 03.09.2019. On completion of investigation, final report was submitted. B. The learned Judicial Magistrate First Class, Khargone took cognizance of the alleged offence. The learned Judicial Magistrate First Class, Khargone vide order dated 30.05.2022 framed charges for the offence punishable under Sections 273, 420 of IPC and Section 51 of the Food Safety and Standards Act, 2006 against both the petitioners. The trial is underway. The prosecution witnesses are yet to be examined.3
NEUTRAL CITATION NO. 2025:MPHC-IND:11095
3. The impugned FIR at Crime No.452/2019 and the Order dated 30.05.2022 is assailed in present petition on following grounds :-
(i) The petitioners are prosecuted for offence punishable under Sections 26(2)(ii) read with Section 51 of the Food Safety and Standards Act, 2006, which is punishable with fine only. The Additional District Magistrate, Khargone vide order dated 17.07.2020(Annexure-P/4) imposed fine of Rs.20,000/- which is duly deposited by the petitioners, therefore, the petitioners cannot be prosecuted before the Court of Judicial Magistrate First Class for the same act.
(ii) The Food Safety Officer was not authorized to initiate prosecution against the petitioners for the offence punishable under the Indian Penal Code.
(iii) The report of Food Analyst does not suggest that the food articles were noxious, therefore, the offence punishable under Sections 272 and 273 of IPC is not made out against the petitioners.. The offence of cheating punishable under Section 420 of IPC is also not made out against the petitioners.
(iv) In view of the overriding effect of the Food Safety and Standards Act, 2006 as provided under Section 89 of the Act, the prosecution before the learned JMFC is illegal. On these grounds, it is prayed the impugned FIR and the impugned order framing charges against the petitioners be quashed.
4. Learned counsel for the petitioners, in addition to the grounds mentioned in the petition, contends that the offence punishable under 4 NEUTRAL CITATION NO. 2025:MPHC-IND:11095 Section 51 of The Food Safety and Standards Act, 2006 is punishable with fine only, therefore, the prosecution under Section 51 of the Act before learned JMFC was against the mandate of law. The offences punishable under Sections 273 and 420 of IPC are not made out from the material on record, therefore, the prosecution deserves to be quashed.
5. Per Contra, learned counsel for the State opposes the petition and submits that the petitioners were found selling sub-standard food articles from their firm M/s. Patidar Milk Products. Their intention to deceive the customers is made out. The learned trial Court committed no error in framing the charges of alleged offence against the petitioners. The petition is meritless.
6. Heard both the parties and perused the record.
7. Sections 51 and 59 of the Food Safety and Standards Act, 2006 reads as under :-
Section 51. Penalty for sub-standard food- Any person who whether by himself or by any other person on his behalf manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is sub-standard, shall be liable to a penalty which may extend to five lakh rupees;
Section 59. Punishment for unsafe food.- Any person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable--
(i) where such failure or contravention does not result in injury, with [imprisonment for a term which may extend to three months and also with fine which may extend to three lakh rupees]; [ Subs. for "imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees" by Act 18 of 2023, Section 2 and Sch. (w.e.f. 8-11-2023).]
(ii) where such failure or contravention results in a non-grievous injury, with imprisonment for a term which may extend to one year and also with fine which may extend to three lakh rupees;5
NEUTRAL CITATION NO. 2025:MPHC-IND:11095
(iii) where such failure or contravention results in a grievous injury, with imprisonment for a term which may extend to six years and also with fine which may extend to five lakh rupees;
(iv) where such failure or contravention results in death, with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and also with fine which shall not be less than ten lakh rupees."
8. Section 42 of the Food Safety and Standards Act, 2006 lays down the procedure for launching prosecution as under-
Section 42.Procedure for launching prosecution:
(1) ...........
(2) ................
(3) The Designated Officer after scrutiny of the report of Food Analyst shall decide as to whether the contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send his recommendations within fourteen days to the Commissioner of Food Safety for sanctioning prosecution. (4) The Commissioner of Food Safety shall, if he so deems fit decide, within the period prescribed by the Central Government, as per the gravity of offence, whether the matter be referred to,- (a) a court of ordinary jurisdiction in case of offences punishable with imprisonment for a term up to three years; or (b) a Special Court in case of offences punishable with imprisonment for a term exceeding three years where such Special Court is established and in case no Special Court is established, such cases shall be tried by a Court of ordinary jurisdiction. (5) The Commissioner of Food Safety shall communicate his decision to the Designated Officer and the concerned Food Safety Officer who shall launch prosecution before courts of ordinary jurisdiction or Special Court, as the case may be; and such communication shall also be sent to the purchaser, if the sample was taken under section 40.
9. It is pertinent to mention here that the allegation against the petitioners relates to sale of sub-standard food item paneer and ghee, which is punishable with fine under Section 26(2)(ii) read with Section 51 of the Food Safety and Standards Act, 2006. There is no prosecution against the petitioners relating to offence punishable under Section 59 of 6 NEUTRAL CITATION NO. 2025:MPHC-IND:11095 the FSSA, 2006. Admittedly, the petitioners have been prosecuted and sentenced to fine for offence punishable under Section 51 of FSSA Act, 2006 vide order 17.07.2020 by the designated officer and Additional District Magistrate, Khargone, therefore prosecution of the petitioners for the same offence before learned Judicial Magistrate First Class, Khargone was against the mandate of law and apparently illegal.
10. Section 273 of IPC reads as under :
273. Sale of noxious food or drink- Whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
11. BLACK on Law Dictionary defined noxious as harmful, offensive and to include complex idea both of insalubrity and offensiveness which causes or tend to cause injury specially to the health. In the case of Joseph Kurian Philip Jose v. State of Kerala, (1994) 6 SCC 535, it is observed:
7. In order to establish that an offence under Section 272 IPC has been committed, the prosecution has to prove that the article involved was food or drink meant to be consumed by live persons, that the accused adulterated it, that such adulteration rendered it noxious as food or drink, and that the accused at the time of such adulteration intended to sell such article as food or drink, or knew it to be likely that such article would be sold as food or drink.
Now noxious rendering is making it poisonous or harmful or both. ...
(emphasis added)
12. There is no allegation that the petitioners adulterated food articles paneer and ghee with some noxious material to render it unfit for human consumption, poisonous or harmful. Therefore, the essential ingredient to constitute offence punishable under Section 273 of IPC is not made out 7 NEUTRAL CITATION NO. 2025:MPHC-IND:11095 from the material available on final report.
13. Section 89 of the Food Safety and Standards Act, 2006 provides as under-
Section 89. Overriding effect of this Act over all other food related laws.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
14. Recently, in the case of Ram Nath v. State of U.P., (2024) 3 SCC 502, while examining the overriding effect of the Food Safety and Standards Act, 2006, it is held that :
2. The issue involved in these appeals is about the interplay between the provisions of Chapter IX of the Food Safety and Standards Act, 2006 (for short "FSSA") and Sections 272 and 273 of the Penal Code, 1860 (for short "IPC").
7. In short, the controversy is whether the view taken in Pepsico [Pepsico India Holdings (P) Ltd. v. State of U.P., 2010 SCC OnLine All 1708] , which is the subject-matter of challenge in Criminal Appeals Nos. 476-78 of 2012, is correct. In the said decision, it was held that after coming into force of FSSA with effect from 29-7-2010, it would have an overriding effect on other food-
related laws, including the PFA. Therefore, the High Court held that invocation of Sections 272 and 273 IPC concerning food adulteration pursuant to a Government Order dated 11-5-2010 was bad in law.
27. In this context, we must consider the effect of Section 89 FSSA. Section 89 reads thus:
"89. Overriding effect of this Act over all other food related laws.-- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect of virtue of any law other than this Act."
The title of the Section indeed indicates that the intention is to give an overriding effect to FSSA over all "food-related laws". However, in the main section, there is no such restriction confined to "food-related laws", and it is provided that provisions of FSSA shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. So, the section indicates that an overriding effect is given to the provisions of FSSA over any other law.
28. The settled law is that if the main section is unambiguous, the aid of the title of the section or its marginal note cannot be taken to interpret the same. Only if it is ambiguous, the title of the section or the marginal note can be 8 NEUTRAL CITATION NO. 2025:MPHC-IND:11095 looked into to understand the intention of the legislature.
29. Therefore, the main Section clearly gives overriding effect to the provisions of FSSA over any other law insofar as the law applies to the aspects of food in the field covered by FSSA. In this case, we are concerned only with Sections 272 and 273 IPC. When the offences under Sections 272 and 273 IPC are made out, even the offence under Section 59 FSSA will be attracted. In fact, the offence under Section 59 FSSA is more stringent.
30. The decision of this Court in Swami Achyutanand Tirth [Swami Achyutanand Tirth v. Union of India, (2014) 13 SCC 314 : (2014) 5 SCC (Cri) 647] does not deal with this contingency at all. In State of Maharashtra [State of Maharashtra v. Sayyed Hassan Sayyed Subhan, (2019) 18 SCC 145 :
(2020) 3 SCC (Cri) 592] , the question of the effect of Section 97 FSSA did not arise for consideration of this Court. The Court dealt with simultaneous prosecutions and concluded that there could be simultaneous prosecutions, but conviction and sentence can be only in one. This proposition is based on what is incorporated in Section 26 of the GC Act. We have no manner of doubt that by virtue of Section 89 FSSA, Section 59 will override the provisions of Sections 272 and 273 IPC. Therefore, there will not be any question of simultaneous prosecution under both the statutes.
15. Thus, in view of the overriding effect of Food Safety and Standards Act over all other food related laws, the prosecution of petitioners for offence punishable under Section 273 of IPC was against the mandate of law.
16. "Cheating" has been defined in section 415 of the IPC which reads as under :-
Section 415. Cheating - Whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any other person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
17. Thus, the offence of cheating punishable under section 420 of IPC, would be constituted when some other person is deceived by being 9 NEUTRAL CITATION NO. 2025:MPHC-IND:11095 fraudulently or dishonestly induced him to deliver any property to the accused or to make, alter or destroy the whole or any part of valuable security, or anything which is signed or sealed and which is capable of being converted into a valuable security.
18. In the present case, there is nothing on record to indicate that the petitioners had induced any person to deliver any property or valuable security to them. It is not the case of prosecution that any specific individual was induced to purchase or procure the substandard paneer and ghee and that person in furtherence of such inducement, parted away with any money, property or valuable security. In absence of any such allegation, prima facie the offence punishable under section 420 IPC against the petitioners is not made out.
19. In case of Bansilal Agarwal Vs. State of M.P. (Order dated 3.2.2010 passed in M.Cr.C.No.8629/2009), the observations of Division Bench were quoted with approval that:-
"7. On consideration of the rival contention of both the counsel it is pertinent to note that the police had also registered the case against the applicants under the National Security Act and that registration has been challenged before the Division Bench of this Court as Writ Petition No.12015/09, wherein the Division Bench of this Court while ascertaining the legal ground for the detention of the applicant Bansilal under the National Security Act came to the conclusion that prima facie if some adulterated food articles were found in the premises of the applicant then certainly on that basis the case under section 420 IPC cannot be registered when the act for storing the adulterated articles has been specifically punishable under the Special Act. It is useful to quote the relevant para of the judgment passed by the Division Bench, which reads here as under :-
"The list of the cases registered against him nowhere shows that any of the case is in relation to misbranding or trying to sell the material manufactured by him in some different name. True it is that in some of the cases offences under Section 420 of the Indian penal Code have 10 NEUTRAL CITATION NO. 2025:MPHC-IND:11095 been registered. Though the question is not directly before us, but we will have to observe that such registration in itself would not be sufficient because the First Information Reports do nowhere say that who were cheated and how an ofence punishable under Section 420 of the Indian Penal Code is made out. We are of the prima facie opinion that offences punishable under section 420 of the Indian Penal Code are not made out because there is no material on record to show that somebody was cheated. It is nobody's case that the manufacturer or suppliers of ghee persuaded somebody to part with their property by telling them that the petitioners would be selling them pure ghee and by that further persuaded them that they would be getting pure ghee. There is nothing on record to show or suggest that somebody ever made any complaint that in absence of such a persuasion, he would not have purchased ghee nor would have parted with his property as price of ghee. Be that as it may, the question before us is that whether registration of an offence under section 420 of the Indian Penal Code and in some of the cases registration under section 188 of Indian Penal Code would add to the gravity for purposes of detention."
20. In view of above discussion, this Court is of the considered opinion that the prosecution of petitioners for offence punishable under Section 51 of the Food Safety and Standards Act, 2006 and under Section 273 of IPC is against the mandate of law and per se illegal. The essential ingredient to constitute offence of cheating punishable under Section 420 of IPC are not made out from the material on record. Therefore, further proceeding in the matter would be a futile exercise and abuse of process of Court. Learned Judicial Magistrate First Class, Khargone committed an error in framing charges of the offence punishable under Sections 273, 420 of IPC and Section 51 of the Food Safety and Standards Act, 2006 vide impugned order dated 03.06.2022 against the petitioners. Therefore, the inherent powers under Section 482 of the Criminal Procedure are invoked to prevent the abuse of process of Court and to secure ends of justice.
11NEUTRAL CITATION NO. 2025:MPHC-IND:11095
21. Consequently, the impugned FIR registered at Crime No.452/2019 dated 02.09.2019, Barwah, District Khargone and charge-sheet dated 27.12.2019 filed on 27.06.2020, for offence punishable under Sections 272, 273, 420 of IPC and Section 26(2)(ii) read with Section 51 of Food Safety and Standards Act, 2006 and the impugned order dated 03.06.2022 alongwith all consequential proceedings are quashed. The petitioners stand discharged.
Copy of this order be sent to the concerned Police Station for information and compliance.
(Sanjeev S. Kalgaonkar) Judge pn