Calcutta High Court
Bhaskar Tea And Industries Ltd. vs State on 16 October, 2007
Equivalent citations: 2008(1)CHN298
JUDGMENT Partha Sakha Datta, J.
1. This revisional application dated 14th September, 2004 challenges the prosecution launched against M/s Bhaskar Tea & Industries Ltd., which is one of the five accused persons in connection with Sessions Case No. 40 of 1997 arising out of South Port Police Station Case No. 124 dated 14.5.1993 under Section 120B/272 of the Indian Penal Code on various grounds which will be found in the subsequent paragraphs. An application was moved before the learned Additional Sessions Judge, Fast Track Court No. 1, Bichar Bhawan at Calcutta praying for dropping of the proceedings as against the said M/s Bhaskar Tea & Industries Ltd. on the ground that the said company being a body corporate, cannot be fastened with criminal liability and accordingly, the prosecution against the said company is not maintainable.
2. The learned Judge in the Court below observed in the order impugned dated 27.8.2004 that the question of maintainability of the proceedings as against the company cannot be taken up for consideration in isolation of the consideration of charge as against the other accused persons and the application of the accused No. 5 viz. the company can only be taken up for hearing on the date as was fixed for consideration of charge. Against the order of rejection of the petition of the company praying for immediate hearing of the petition pending hearing on consideration of charge in respect of the other accused persons, the company has come up with this revisional application on varieties of grounds as have been taken up by Mr. Amit Bhattacharjee, learned Advocate appearing for the petitioner, which include, not only the legality of proceedings as against the company, but also as against the continuation of the proceedings as a whole against all the accused persons and it is, therefore, proper that each of the grounds has to be considered serially.
3. It has been contended by Mr. Bhattacharjee that the company, which is a body corporate, and four other accused persons who are Directors of the said company have been sought to be prosecuted against on the charge under Section 272 of the IPC on the alleged ground that pursuant to a raid in the business place of the company, quantum of tea were seized which were found to have been grossly adulterated and in view of the West Bengal Amendment of Section 272 of the IPC, the case as against the five accused persons including the company, has been committed to the Court of Session and the learned Additional Sessions Judge, Fast Track Court No. 2 at Bichar Bhawan, Calcutta is set to frame charge against the accused persons.
4. Section 272 IPC reads as follows:
Whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description of a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
5. By the West Bengal Amendment Act No. 42 of 1973, the offence under Section 272 IPC has been punishable with effect from 29.4.1973 with imprisonment for life with or without fine with the proviso that the Court may for adequate and special reasons to be mentioned in the Judgment impose a sentence of imprisonment less than life imprisonment.
6. According to the report of the Public Analyst dated 30lh June, 1993 the sample of tea did not conform to the specification 'Tea' and is found grossly adulterated with fibrous material of stems of tea place together with tender and hard steps of tea, jute fibres, chips of other wood and wobbings. As a whole the sample looks like sweeping and not worthy of tea. The sample as such is considered not fit for human consumption."
7. Mr. Bhattahcarjee argued that the prosecution against the accused persons under Section 272 of the IPC is quite not maintainable because when there is a special Act viz. the Prevention of Food Adulteration Act, 1954 dealing with an act of adulteration, it is the provisions of the said PFA Act under which the accused persons could have been prosecuted, if there was at all any case against them, and the legal proposition that special enactments must surpass the provisions of the general law, which the IPC in the instant case is one such, has been given a complete go-bye, and the prosecution is immediately required to be quashed as against the accused persons. It has been submitted that Section 16(1) of the Prevention of Food Adulteration Act, 1954 is a comprehensive legislation, special of its kind, which is sufficient to take care of all the situations arising out of any act of adulteration and in view thereof, the provision of Section 272 of the IPC can be said to be a law obsolete. Mr. Bhattacharjee cited some observations of Mr. Vepa P. Sarathy from his Book "Interpretation of Statutes, 4th Edn". In the said treaties there is a Chapter titled "Repeals and Temporary Statutes" wherein there are some observations of different Courts including a foreign Judgment in support of the proposition that if a statute deals with a particular class of offence and a subsequent Act is passed, which deals with precisely the same offence, and a different punishment is imposed by the latter Act, the Legislature has declared that the new Act shall be substituted by the earlier Act. There is an extract of a decision in Bengal Immunity Co. Ltd. v. State of Bihar where Their Lordships observed as follows:
One of the applications of the rule of harmonious construction is that a law generally dealing with a subject and another dealing particularly with one of the topics comprised herein, the general law is to be construed as yielding to the special in respect of the matters comprised therein.
8. Then the decision in J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P., has been quoted wherein Their Lordships held:
In cases of conflict between a specific provision and a general provision, the specific provision prevails over the general provision and the general provision applies, only to such cases which are not covered by the special provision.
9. Again, the decision in CIT v. Shahzada Nand & Sons has been cited, wherein it was held: "The maxim, generalia specialibus non derogant, means that when there is a conflict between a general and a special provision, the latter shall prevail.
10. Mr. Bhattacharjee refers to two other decisions viz. Avtar Singh v. State of Punjab 1965(1) SCWR 289 and Arakhita Patnaik v. State of Orissa 1994 Cr. LJ 2242 (Ori).
11. Another sub-branch of the argument of the Learned Counsel for the petitioner is that the West Bengal State Legislature by Prevention of Adulteration of Food, Drugs and Cosmetics (West Bengal Amendment) Act, 1973 made the offence under Section 16(1A) read with Section 7 of the Act in the State of West Bengal punishable with imprisonment for life while the Central Legislature by the Central Amendment Act, 1976 provided a reduced punishment for a term of three years instead of six years under Section 16(1A) of the PFA Act. Thus according to Mr. Bhattacharjee, it is the Central amendment in the PFA Act, 1954 that must prevail over the State amendment of that Act which made the offence punishable with imprisonment for life and if the prosecution was at all desired against the accused persons, the same should have been under the PFA Act in terms of the Central amendment and this shows that in view of Article 254(1), when there is repugnancy or inconsistency between a provision of the Central Act and a provision of a State Act covering the same subject-matter, it is the Central Act that would prevail over the State Act and thus neither the Prevention of Adulteration of Food, Drugs and Cosmetics (West Bengal Amendment) Act, 1973 nor Section 272 of the IPC in its relation to the West Bengal Amendment, which came into force from 29.4.1973 would operate in the field. It is submitted by Mr. Bhattacharjee further that it is the cardinal principle of criminal jurisprudence that when two statutes define and prescribe one and the same identical offence and when the two Acts operate simultaneously in the same field, the offender is entitled to he visited with penalty, subject to the proof of guilt, in terms of the statute which prescribes the lesser punishment and in view thereof, since Section 272 of the IPC under which the prosecution has been launched against the accused persons, prescribes life imprisonment in contradiction with the Prevention of Food Adulteration Act, 1954 as amended by the Central Amendment Act of 1976, the offender can only be visited with imprisonment not exceeding a period of three years and with fine. It is the PFA Act that should have been commissioned into service against the accused persons. Thus it is argued that the prosecution under Section 272 of the IPC is totally misnomer. A decision in T. Barai v. Henry A Hoe and Anr. has been cited.
12. Mr. Swapan Kumar Mallick, Learned Counsel appearing for the State of West Bengal submitted that the argument of Mr. Bhattacharjee is misplaced in view of the fact that Section 272 of the IPC has not yet been declared to have been impliedly repealed because of the advent of the Prevention of Food Adulteration Act, 1954, as amended.
13. It is, therefore, necessary to examine whether the provision of Section 272 of the IPC is pari materia the same as the provisions in Section 16(1) of the Prevention of Food Adulteration Act, 1954, as amended. Law is well-settled that a prior general Act may be affected by a subsequent particular or special Act if the subject-matter of the particular Act prior to its enforcement was being governed by the general provisions of the earlier Act, and in such a case, only the operation of the special Act may have the effect of partially repealing the general Act. Secondly, if a latter statute again describes an offence created by an earlier statute and imposes different punishment or varies the procedure, the earlier statute is repealed by implication. We have seen that under Section 272 of the IPC, mere act of adulteration by any substance with any article of food or drink would not bring the act within the ambit of the said section. The act of adulteration must have the effect of it being noxious as food or drink and it is the attribute of noxiousness as a result of adulteration of the article of food or drink that makes such an act of adulteration punishable under Section 272 of the IPC. And secondly, that adulteration must be with intention to sell it as food or drink. As compared with this, the provision of Section 16(1) of the PFA Act shows that adulteration is complete when some acts are done as are defined in Section 2(ia) of the PFA Act. It appears that when there is adulteration by deviation of specification as provided in the rules, offence is punishable. Under Section 16(1) the offence committed of the nature as mentioned therein arte punishable to the extent of 3 years and with fine. The two provisos to Section 16(1) reduced the punishment to the extent of two years and three months respectively. Sub-section (1A) of Section 16 makes adulteration within the meaning of the Sub-clauses (e) to (i) of Clause (ia) of Section 2 or any adulterant which is injurious to health punishable with imprisonment for a term which may extend to six years. Proviso to that sub-section makes the offence punishable with imprisonment for life when the article of food is likely to cause death or cause grievous hurt. Sub-section (1AA) of Section 16 makes the offence punishable with imprisonment for two years, while Sub-section (IB) of Section 16 makes the offence punishable with imprisonment for a term which may extend to life. As distinguished from the above provisions of law under the PFA Act, the provision of Section 272 of the IPC makes adulteration an offence when it is exposed for sale and it is obnoxious in character. In my humble opinion, Section 272 of the IPC can continue to run simultaneously with the provisions of the PFA Act and both operate in the respective field with no collision with each other and when there is no collision, the question of repugnancy or inconsistency does not arise. There is a presumption against a repeal by implication on the basis of the theory that the Legislature, while enacting a law, has a complete knowledge of the existing laws on the same subject-matter and thus when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. In Municipal Council, Palai v. T.J. Joseph , Their Lordships of the Supreme Court have indicated that the test applied for determining repugnancy under Article 254 of the Constitution may be applied for solving a question of implied repeal and that it should be seen "(1) whether there is direct conflict between the two provisions; (2) whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law; and (3) whether the two laws occupy the same field". The PFA Act, Section 25 provides repeal of an Act prevalent in a State where the PFA Act extends. But to my mind, by Section 25(1) of the PFA Act, it cannot be said that the Central Legislature intended to repeal Section 272 of the IPC because both the Acts are Central laws and both operate in the State of West Bengal. I got inspiration in this connection from a decision of Bombay High Court in Mahesh Ramchandra Jadhav and Anr. v. State of Maharashtra 1999 Cr. LJ 2310 where similar argument was placed to the effect that PFA Act repealed Sections 270, 271, 272, 273 and 347 of the IPC. The contention was negated. It was observed that there is nothing in the provisions of the PFA Act which nullifies the relevant sections as quoted above of the IPC or make them dormant and non-applicable and there is nothing in the P.F.A. Act which bars prosecution under Section 272 of the IPC.
14. Mr. Bhattacharjee has a point which is boiled down to the question whether Section 272 IPC stands entirely repealed or the West Bengal Amendment Act 42 of 1973 providing for life imprisonment is repealed. As we have seen, any act of adulteration does not bring the act within the ambit of Section 272 IPC. Article of food or drink intended for sale has to be 'obnoxious'. There is no definition of the word 'obnoxious' attached to the section. Black's Law Dictionary defines 'noxious' as one which is harmful or injurious to health. A Division Bench decision of this Court, in 1908 CWN 608 held that 'noxious' means harmful to health or unwholesome. The provisions contained in Sub-section (1) of Section 16 of the PFA Act do not contain the same ingredient as in Section 272 IPC. Similarly, the provisions of Sub-section (1AA) or (IB) or (1C) or (ID) of the PFA Act are completely different from the ingredient of Section 272 IPC. It is clause (ii) of Sub-section (1A) of Section 16 of the PFA Act that may be legitimately compared with Section 272 IPC. The said sub-section read with Clause (ii) reads: "If any person whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes, any adulterant which is injurious to health. It appears that there is the identity of the act referred to in Section 16(1A)(ii) of PFA Act with Section 272 IPC because both speak of act of adulteration which is 'injurious to health' or 'obnoxious' or 'unwholesome'. Now, provision under Section 16(1A)(ii) is punishable with imprisonment for a term which shall not be less than one year but which may extend to six years with fine which shall not be less than two thousand rupees.
15. The West Bengal Legislative Assembly passed an enactment called Prevention of Adulteration of Food, Drugs and Cosmetics (West Bengal Amendment) Act, 1973 whereby the punishment under Section 16(1A) was enhanced to life imprisonment with effect from 29.4.1974. The Central amendment by Act 34 of 1976 reduced the punishment of that section of the PFA Act to three years. In T. Barai (supra), Their Lordships of the Supreme Court held by applying the principle in that when Parliament stepped, the West Bengal Amendment Act increasing the punishment to life imprisonment under Section 16(1A) stood impliedly repealed and the accused must have the benefit of reduced punishment. The Central amendment came into being by Amendment Act of 1976 with respect to Section 16(1) and 16(1A). Under Sections 16(1A) if any person manufactures for sale or stores, sells or distributes any adulterant which is injurious to health, then he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than one year, but which may extend to six years and with fine which shall not be less than two thousand rupees. Thus under Section 16(1), the act of adulteration which is injurious to health is punishable upto six years. But the proviso to Sub-section (1A) is that if consumption of article of food is likely to cause death, then it is punishable with life imprisonment, while act of adulteration which is 'obnoxious' or 'injurious to health' is punishable with life imprisonment under Section 272 of the IPC and herein lies the repugnancy between the Central Act, 1976 and the West Bengal Act 42 of 1973 which came into effect from 29.4.1974 whereby punishment for offence under Section 272 IPC was enhanced to life imprisonment. This repugnancy is the core of the situation and relying upon T. Barai (supra) it can be said that the West Bengal Amendment Act 42 of 1973, whereby punishment under Section 272 IPC was enhanced life imprisonment, is virtually repealed by the Central Amendment Act 1976. In terms of the decision in T. Barai (supra), Central Amendment Act of 1976 repealed the West Bengal Amendment Act of 1973 in its relation to enhancement of punishment under Section 16(1 A) of the PFA Act. On the same analogy it can be said that the West Bengal Amendment Act 42 of 1973 by which Section 272 of the IPC was amended to increase the penalty in the form of life imprisonment, stood overruled. Now, if the West Bengal Amendment of Section 272 of the IPC is kept aside, then what would remain, is the original Central enactment of Section 272 of the IPC which, if compared with Section 16(1A) of the PFA Act, would not reveal any repugnancy or inconsistency. Section 26 of the General Clauses Act provides that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be punished under either of any of those enactments; but shall not be liable to be punished twice for the same offence. Article 20(2) of the Constitution directs that no person shall be prosecuted and punished for the same offence more than once. Both these provisions apply only when the two offences which form the subject of prosecution or prosecutions are the same, i.e., the ingredients which constitute the two offences are the same. Thus it can be said that the West Bengal Amendment Act, 42 of 1973 enhancing the punishment under Section 272 of the IPC can be said to have been impliedly repealed on the strength of the decision in T. Barai (supra).
16. Mr. Bhattacharjee argued that sanction is necessary for prosecution of the offenders because the PFA Act provides for sanction in Section 20 of the Act. The argument merits no consideration in view of the fact that the instant prosecution is a prosecution under Section 272 of the IPC, which does not require any prior sanction for taking cognizance of an offence. The decision in Yeshivantrao Dattaji Chowgule and Ors. v. State 1993 (1) Crimes 534 as cited relates to prosecution under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 and under Section 406 IPC, which is not applicable to the case of ours.
17. The third argument was that the report of the Public Analyst does not show that the adulterated article of tea was noxious and in the absence of use of expression "noxious" the prosecution is bad and illegal in law. I have been taken to Black Law Dictionary (8th Edn. Page 1096) where Black defines "noxious" as which is harmful to health or injurious. It is submitted by Mr. Bhattacharjee that the report of the Public Analyst does not say that the result of the analysis reveals that the adulterated tea was harmful or injurious and mere observation that the article was unfit for human consumption is not sufficient enough to fasten the accused persons within the mischief of Section 272 of the IPC. It is plain that to employ the penal liability of Section 272 of the IPC, there must be adulteration of food or drink so as to make such article "noxious" as food or drink. A decision in Chokraj Marwari v. Emperor 1908 (12) CWN 698 (Cal/DB) has been cited where it has been held that "noxious" means, harmful to health or unwholesome. Again, the decision in Dhaiva v. Emperor AIR 1926 Lahore 49 has been cited where the High Court of Lahore held that the drink was adulterated, no doubt but there was no evidence on record that the mixture was "noxious" i.e. injurious as food or drink, and hence, no offence can be said to have been committed. The Punjab & Haryana High Court in Raj Kumar v. State 1991 (II) Crimes 217 (P&H) in a case under Section 272 of the IPC held that where there is a strong suspicion about the commission of offence, it can be well said that prima facie case for framing charge is made out. But in the reported case no charge was held to be possible because no prima facie case was found out. It vas held by the High Court of Punjab & Haryana that the mere presence of non-permitted red oil soluble coal tardye, the percentage of which has not been given in the report of the Public Analyst would not make the spices as "noxious". These decisions are based on the fact and evidence of each particular case, and when the decision in each case was to be made with reference to evidence of each such case the matter cannot be allowed to be prematurely decided in this revisional forum before adjudication in the trial. Exercising revisional jurisdiction this Court cannot come to an opinion that what was seized was not such an adulterated article of food or drink which was "noxious". The Public Analyst, who has submitted the report, may be subjected to cross-examination with reference to his report, if the defence desires to cross-examine him and unless the issue is decided at the trial through oral and documentary evidence, it cannot be said prematurely at this stage, when I am considering the prayer of quashing of the proceeding that the report of the Public Analyst is sufficient to destroy and kill the prosecution case. The matter has to be left at the trial.
18. The fourth branch of argument of the Learned Counsel for the petitioner has been very serious one and at the same time interesting. It is submitted that the company is a juristic entity having no mind of its own and it cannot be prosecuted because it has no mens rea. Distinction is sought to be made between strict liability and absolute liability, and according to Mr. Bhattacharjee, while applying a penal statute to a company it has to be proved that strict liability can be legally attributable to the company. It is submitted that to commit a crime, there must be a happy tryst between mens rea and overt act and in the decision in Standard Chartered Bank v. Directorate of Enforcement and Ors. 2005 SCC (Cri) 961. Their Lordships of the Supreme Court observed, inter alia. "it is only in a case requiring mens rea, a question arises whether a corporation could be attributed with requisite mens rea to prove the guilt. But as we are not concerned with this question in these proceedings, we do not express any opinion on that issue". The Learned Counsel for the petitioner has also referred to Phalguni Saha v. State of West Bengal and Ors. 2002 C Cr. LR (Cal) 839, Glaxo India Ltd. v. State of West Bengal and Anr. 2004(1) E. Cr. N.(Cal) 969. These decisions are prior to Standard Chartered. I have gone through the decision of the Hon'ble Supreme Court where Their Lordships held that the distinction between the strict construction and a more free one has disappeared in modern times and now mostly the question is "what is true construction of the statute?" Their Lordships held on the facts of the reported case that the legislative intent to prosecute corporate bodies of the offence committed by them is clear and explicit and the statute never intended to exonerate them from being prosecuted. Their Lordships observed, "it is sheer violence to common sense that the Legislature intended to punish the Corporate Bodies for minor and silly offences and extended immunity of prosecution to major and grave economic crimes". It cannot be said that the act of adulteration of tea with dangerous and foreign substance as we find from the report of the Public Analyst, is a minor and silly offence and the Legislature did not intend to inflict punishment to Corporate Body which of course acts through its agents, officers and directors, In this connection I am prompted to refer to a certain passage from "Craies on Statute Law 7th Edn. (page 531) where it has been held that the distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. "All modern Acts are framed with regard to equitable as well as legal principles." A hundred years ago, said the Court in Lyons' case, statutes were required to be perfectly precise, and resort was not had to a reasonable construction of the Act, and thereby the criminals were often allowed to escape. This is not the present mode of construing, Acts of Parliaments.' They are construed now with reference to the true meaning and real intention of the Legislatures. My attention has been drawn to a Division Bench decision of this Court in Champa Agency and Anr. v. R. Choudhury and Anr. 1974 CHN 400 where it was held that a company or a corporate body cannot be prosecuted for an offence under Section 407 of the IPC. The same decision was reached in Kusum Products Ltd. v. S.K. Sinha, ITO, Central Circle X, Calcutta, 1980(2) CHN 32. The decision proceeded on the footing that a company has no mens rea. In another decision in East India Jute & Hessian Exchanges Ltd. v. Amulya Krishna Mondal ITCE Ward and Anr. 1989 C Cr. LR(Cal) 171 (DB) the same principle has been followed. But in view of the observations in Standard Chartered Bank (supra) and the general principles of law as have been quoted from the Treaties of Craies on Statute law and having regard to the factualities of the case I am of the Judgment that the debate, which is purely an academic one, may not be stretched too far. Section 272 of the IPC begins with the word "whoever". The word "whoever" means any 'person' which has been defined in Section 11 of the IPC to mean and include any company or association or body or persons, whether incorporated or not. The principles being available as above, we are only to see whether the Legislature while framing Section 272 of the IPC had any intention to exclude the corporate body from the ambit of that section, and my answer is 'no' because had it any such intention the company would have been expressly excluded. As has been observed in paragraphs 7 and 8 of the decision in Standard Chartered Bank, there is no doubt that a Corporation or a company can be prosecuted for an offence punishable under law, whether it is coming under the strict liability or absolute liability. Moreover though a juristic entity it is the principal offender and to discharge the company would have been the effect of unfastening the culpability of the men and agents of the company because minus the company they are nobody in law. In the decision in Hanuman Sugar & Industries Ltd. v. Nirmalendu Banerjce ITO 1992(1) CHN 299 which dealt with a case under the Income-tax Act it has been held that since the company as the principal offender could not be proceeded against, its directors who are only vicariously liable cannot also be proceeded against and convicted. The liability being a statutory liability and since the Hon'ble Supreme Court observes in Standard Chartered (supra) that the intention of the Legislature is not to let free the bodies committing grave offences, it is now firmly established that the company can be legally roped in to meet the charge under Section 272 IPC.
19. Lastly it is argued that the company being a juristic entity, cannot be prosecuted for an offence where imprisonment is a mandatory punishment. The Learned Counsel for the petitioner invokes the doctrine of "casus omissus" as a fundamental premise of the argument that since corporeal punishment which is provided for in Section 272 of the IPC cannot be attributable to a juristic entity and as company cannot be sent to prison the prosecution is not maintainable. The decision in Kumar Kamalaranjan Roy v. Secretary of State has been cited where it was observed that the Court cannot put into an Act, which are not expressed and which cannot reasonably be implied on any recognized principles of construction and that would be a work of legislation, not of construction and outside the province of the Court. Learned Counsel for the petitioner submitted that right from early Bench decision of this High Court in 1980s to the Assistant Commissioner v. Velliappa Textiles Ltd. it has been consistently held that as company has no body or soul it cannot be awarded any corporeal punishment and accordingly statutory provision for corporal punishment together with fine as a compulsory imprisonment becomes nugatory and the judiciary cannot supplement to the words of the statute which in a given situation are unworkable. It has been submitted that in the Assistant Commissioner v. Velliappa Textiles Ltd., 2003(4) RCR (Cri) 695 it has been held that since company being a juristic person cannot be made to undergo imprisonment, prosecution cannot be launched against the company. The decision in Mehboob Dawood Shaikh v. State of Maharashtra 2004 SCC (Cri) 551 has been cited and it is submitted that till Velliappa Textiles case it has been the perception in the Indian judiciary that no matter what are the words in the statute. Corporate bodies cannot be prosecuted against primarily because of the fact that awarding corporeal punishment is impossible and secondly mens rea was absent. So far as the mens rea or guilty mind is concerned, I have discussed the point in the preceding paragraphs with reference to the observation of the Supreme Court in Standard Chartered Bank and the observation in Treaties of Craies on Statute Law. Now the question is whether in view of the decisions of this Court in the early nineties, the prosecution against the company can be dropped on the premise that it cannot be sent to prison. Mr. Bhattacharjee invokes the doctrine of casus omissus to argue that it was only in the Standard Chartered Bank that the majority view held that even though company cannot be sent to prison as it is impossible to do so, it can be visited with fine and in spite of mandatory imprisonment provided in the statute, company can be prosecuted against and punished with payment of fine and it cannot be argued that the intention of the Legislature has been to exclude the companies in the grave offences. Mr. Bhattacharjee's contention is that the principle underlined in the decision of Standard Chartered to the effect that the company can be prosecuted against and visited with penalty of fine, cannot be made applicable to the instant case of ours, because the decision of the Standard Chartered came into being in May, 2005 while the offence was committed in 1993 and this decision cannot be made applicable to the offences which were committed before the decision came into being. It is argued with an analogy that Employees' Provident Fund and Miscellaneous Provisions Act, 1952 provides for punishment in case payment of provident fund dues is not made within the statutory period of time. There was a decision of this High Court that pre-launching of prosecution payment would absolve the accused of being prosecuted against. This was the view in Hooghly Docking and Engineering Co. 1980(1) CHN 280. Later a Division Bench of the High Court in Pranati Textiles v. State 1989 Cr. LJ 1804 held in reversal of the decision in Hooghly Docking case that once there was a failure to pay in time, a belated even though pre-prosecution payment would be no bar to a criminal prosecution and conviction. The decision in Pranati Textiles was rendered sometime in 1989, while Hooghly Docking case was decided immediately preceding the decision in Pranati Textiles. In Anup Kumar and Anr. v. State of West Bengal 1992 C Cr. LR (Cal) 1 similar question arose and the Division Bench held that a belated though pre-prosecution payment would be no bar to a criminal prosecution. Now in this Anup Kumar case (supra) which was decided in April, 1991, the Division Bench held that the defaults committed by the employers immediately before the decision in Pranati Textiles should not attract prosecution because the decision in Pranati Textiles did not take its birth when such defaults were committed. Therefore, it is argued that this Court should not take the aid of Standard Chartered case because the Standard Chartered did not originate when the instant company committed the offence. Mr. Swapan Kumar Mallick, Learned Counsel appearing for the State of West Bengal seriously contested the submission. He submitted that it is not that the quality or quantity of punishment as was provided in the Section 272 of the IPC changed subsequent to the commission of the offence. The West Bengal amendment came into being in its relation to Section 272 of the IPC with effect from April, 1974 and the accused knew that his act of adulteration was visitable with the punishment as was provided in the Act. Therefore, it is cannot be said that it was the Hon'ble Supreme Court which for the first time in the Standard Chartered decision supplemented the purported omission and invented a new punishment which was not in the statute. It is submitted that the intention of the Legislature is the law and right before the commission of the offence such intention was expressed in the statute and that expression has only been elucidated in the decision of the Hon'ble Supreme Court in the Standard Chartered to the effect that even though it is not physically possible to commit a company to the prison, it can be awarded with the punishment of fine and merely because of the fact that rigorous imprisonment which is a part of the punishment under Section 272 of the IPC cannot be implemented physically, it cannot be said that the other part of the sentence, as has been maintained by the Supreme Court in Standard: Chartered, and as it is already there in the statute, cannot be awarded to the accused upon conviction. Upon hearing the Learned Counsel for the parties, the reasons assigned by Mr. Mallick appears to be more powerful and cogent. The decision in Anup Kumar was completely in a different fact situation which cannot be made applicable here. Here the question is whether a company can be prosecuted against or not in view of the fact that it cannot be sent to prison. Till Velliappa Textiles case, the view was that it cannot be prosecuted against, but the decision was overruled by a Five-Judge Bench of the Hon'ble Supreme Court in Standard Chartered case where it was held that it was not the intention of the Legislature that in grave offences the companies should be made scot-free merely because of the fact that corporeal punishment cannot be given or that it can be visited with fine only in minor offences. It has to be reiterated here that the Supreme Court did not prescribe any new kind of punishment. The Supreme Court explained the law which is an outcome of intention of the Legislature. Therefore, the doctrine of casus omissus cannot be said to be applicable in the instant case. Mr. Bhattacharjee has referred to Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. ; Prakash Amirchand Shah v. State of Gujarat ; Soni Devrajbhai Babubhai v. State of Gujarat and Ors. ; Pratap Singh v. State of Jharhhand and Anr. . The ratio of the decision in Delhi Transport (supra) is that under Article 141, the Supreme Court can make law. The decision in Son Devrajbhai Babubhai (supra) is that Section 304B is a new offence applicable from the date of the enactment. Mr. Bhattacharjee, learned Advocate for the petitioner submitted with reference to a decision in Mehboob Dawood Shaikh, 2004 Supreme Court Cases (Cri) 551 where it has been held at paragraph 12 of the Judgment that a decision is available as a precedent only if it decides a question of law and a Judgment should be understood in the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the Judgment of the Court of the Supreme Court divorced from the context of the question under consideration and treat it to be a complete law decided by the Court. This decision was in a different situation as is reported in that case and there was no reason as to how this observation of the Hon'ble Supreme Court which is definitely a dictum of law, has relevance to the facts of the case which we are concerned with. Mr. Bhattacharjee has referred to a Privy Council decision in Kumar Kamalaranjan Roy v. Secretary of State where it has been held that Court cannot put words which are not expressed and which cannot be implied. I do not find that this decision is really necessary for us. Their Lordships held that it may be that there is a casus omissus, but if so, that omission can only be supplied by statute or statutory action. The Court cannot put into Act words which are not expressed and which cannot reasonably be implied on any recognized principle of construction as that would be a work of legislation not of construction. I do not think that this decision is appropriate as I think no casus omissus was there and so far as Standard Chartered is concerned, it did not put into Act words which were not expressed. In Prakash Amirchand (supra) it has been held in paragraph 26 of the judgment, "a decision ordinarily is a decision on the case before the Court while the principle underlined the decision would be binding as a precedent in a case which comes up for decision subsequently. Hence while applying to the decision to a latter case, the Court which is dealing with it, should carefully try to ascertain the true principle laid down by the previous decision". In Pratap Singh's case (supra) there is a reference to a good number of decisions of the Hon'ble Supreme Court which are very relevant for our consideration. In this decision there is a reference to Ratan hall v. State of Punjab where Their Lordships have inter alia, held that "under Article 20 of the Constitution, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. But an ex post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibition". In Bashcer alias N.P. Basheer v. State of Kerala , Their Lordships observed, "If the Act had contained any provisions to the detriment of the accused, then undoubtedly, it would have been hit by the rule against post facto legislation contained in Article 20(1). However, we find that the amendments (at least the ones rationalizing the sentencing structure) are more beneficial to the accused and amount to mollification of the rigour of the law. Consequently despite retrospectivity, they ought to be applied to the cases pending before the Court or even to cases pending investigation on the date on which the Amending Act came into force. Such application would not be hit by Article 20(1) of the Constitution". Then in Zile Singh v. State of Haryana and Ors. 2005(1) RCR (Cri) 166 (SC), Their Lordships held that rule against retrospectivity cannot be applied to legislations which are explanatory and declaratory in nature. In Dayal Smgh v. State of Rajasthan 2004(2) RCR (Cri) 609 (SC) it has been held that the ex post facto law which only mollifies the rigour of a criminal law did not fall within the prohibition and if a particular law made a provision to that effect, it would be valid despite retrospectivity in operation. These decisions clearly show that the laws which are declaratory or explanatory are retrospective. Craies on Statute Law 7th Edn. (page 395) observed that explanatory and declaratory Acts are always retrospective. It was held, "where an Act is in its nature declaratory, the presumption against construing it retrospectively is inapplicable. In Attorney General Theobald Section 11 of the Customs and Inland Revenue Act, 1889, as to the liability of voluntary settlement to stamp-duty, was held retrospective although the litigation in which different terms were involved, it commenced before it was passed. Acts of this kind, like judgments, decide similar cases pending when the judgments are given, but do not re-open decided cases". This observation equally and appropriately applied in the instant case when the question of applicability of the decision in Standard Chartered in the given facts situation is raised.
20. In, the result, I hold the following:
a. The West Bengal Act No. 42 of 1973 enhancing the punishment to life imprisonment with a proviso thereto has stood impliedly repealed in view of the decision of the Hon'ble Supreme Court in .
b. Original Section 272 of the IPC which is a Central enactment is not repugnant to Section 16(1A) of the PFA Act. They can stand together.
c. No sanction is necessary for prosecution under Section 272 of the IPC.
d. Whether the Article of food is noxious or not cannot be decided in the revisional forum.
e. The decision in Standard Chartered is applicable in the instant case.
f. The liability of the company being a statutory liability the distinction between strict liability and absolute liability has reached a vanishing point.
Subject to the above the revisional application is dismissed.
A copy of the judgment shall be sent to the learned Additional Sessions Judge, Fast Track Court No. II, Bichar Bhawan, Calcutta.
Xerox certified copy, if applied for, be supplied forthwith.
Partha Sakha Datta, J.