Gauhati High Court
Crl.Pet./592/2020 on 17 September, 2025
Page 1 of 10
GAHC010171722020
2025:GAU-AS:12940
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Crl.Pet. No. 592/2020
1. Subrata Chakraborty,ss
S/o Sri Sufal Chakraborty,
At P/R/A Sarada Enclave, Flat No. 404, 4th
Floor, Survey, Beltola Road, Brindaban Path,
P.S.-Basistha, Kamrup(M), Guwahati, Assam,
Pin-781028 and P/R/O/B2/17 Vidyasagar Pally,
Benachity, Durgapur, P.S.-Benachity,
P.O.- Benachity, Dist-Burdwan, West Bengal,
Pin-713213.
Petitioner
-Versus-
1. The State of Assam.
2. Ashim Borah,
S/o Rajen Kr. Borah,
R/o R.R.L. Jorhat,
P.O. And P.S.-Jorhat,
District- Jorhat, Assam-785006.
Respondents
For Petitioner(s) 1. Mr. B. Pathak, Advocate. For Respondent(s) 1. Ms. S.H. Bora, Additional Public Prosecutor.
2. Ms. N. Choudhury, Advocate.
Date of Judgment : 17.09.2025
Crl.Pet./592/2020 Page 1
Page 2 of 10
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGEMENT & ORDER(CAV)
1. Heard Mr. B. Pathak, the learned counsel for the petitioner.
Also heard Ms. S.H. Bora, the learned Additional Public Prosecutor appearing for the State respondent, as well as Ms. N. Choudhury, the learned counsel for the respondent No. 2.
2. This criminal petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 by the petitioner, namely, Subrata Chakraborty, praying for quashing of the FIR dated 16.10.2020 lodged by one Ashim Borah (respondent No. 2) on the basis of which Jorhat P.S. Case No. 2257/2020 was registered under Sections 406/272/273 of the Indian Penal Code, 1860 corresponding to the G.R. Case No. 3680/2020.
3. The facts relevant for consideration of the instant criminal petition, in brief, are that on 16.10.2020, the respondent No. 2 (Ashim Borah)had lodged an FIR before the Officer-in-Charge of Jorhat police station, inter alia, alleging that on that day, at about 5:05 PM, he had ordered for a "5 in 1 Zinger Classic Chicken Box" from the KFC, Jorhat. After availing the meal from the counter, the informant was utterly disappointed with the food quality provided by the KFC, when he found that the chicken that were offered to him was highly rotten and smell rotten and disgusting. When the said complaint was made to Crl.Pet./592/2020 Page 2 Page 3 of 10 the staff of the KFC, none of the staff was ready to accept the responsibility, whereas, other customers who were present there also complaint regarding the smell and quality of the chicken. On receipt of the said FIR, Jorhat P.S. Case No. 2257/2020 was registered under Sections 406/272/273 of the Indian Penal Code, 1860.
4. Mr. B. Pathak, the learned counsel for the petitioner has submitted that the instant case there is no ingredients of offence under Section 406 of the Indian Penal Code, 1860. He submits that even if it is assume that the allegations levelled in the FIR are true, it would only result into tortious liability against his restaurant. He also submits that if Section 406 is removed from the FIR, what remains is the alleged offence under Sections 272/273 of the Indian Penal Code, 1860, which prescribes the maximum punishment, which are non- cognizable offence and therefore, the learned counsel for the petitioner submits that police cannot register an FIR without the order of a competent Magistrate.
5. The learned counsel for the petitioner has also submitted that after passing of the Food Safety and Standards Act, 2006 the provisions of Sections 272/273 of the Indian Penal Code, 1860 has become redundant and any accusation regarding quality of food has to be dealt with under the provisions of the Food Safety and Standards Act, 2006.
Crl.Pet./592/2020 Page 3 Page 4 of 10
6. He submits that said Act has provided as to who can collect the samples and also lays down the procedure of collecting the samples. He submits that under Section 47 of the said Act, the sampling and analysis of the alleged contaminated food has been prescribed and same was not adhered to in the instant case, as it was the respondent No. 2 himself, who took the alleged contaminated food to the police station without following the procedure of sampling and analysis as prescribed in Section 47 of the Food Safety and Standards Act, 2006.In support of his submissions, he has cited the ruling of the Apex Court in the case of "M/s KFC India Holdings Private Limited and others Vs. State of UP and others," reported in "2010 SCC Online ALL 71708" as well as in the case of"Alkem Laboratories Ltd. Vs. State of Madhya Pradesh and Others," reported in "2019 SCC OnLine SC 1536".
7. He also submits that in the instant case, the Food Safety Inspector, on receipt of the requisition from the Investigating Officer had collected alternative sample of the "5 in 1 Zinger Classic Chicken Box" and as per his report, all the parameters were found within the prescribed safety standards. He therefore, submits that there is unlikelihood of this case culminating in conviction and it would be futile to continue with the criminal prosecution against the present petitioner and therefore, he prays for quashing the said FIR.
Crl.Pet./592/2020 Page 4 Page 5 of 10
8. On the other hand, the learned Additional Public Prosecutor submits that prima facie the FIR reflects that there are incriminating materials against the petitioner in serving contaminated chicken to the respondent No. 2 and the ingredients of Sections 406/272/273 of the Indian Penal Code, 1860 are there, therefore, at this stage this Court should not interfere with the criminal proceeding. She also submits that as informed by the Investigating Officer of Jorhat P.S. Case No. 2257/2020, the investigation of the said case is completed.
9. On the other hand, Ms. N. Choudhury, the learned counsel for the respondent No. 2 has vehemently opposed the prayer for quashing of the FIR at this stage. She submits that the bare perusal of the FIR would reflect that the respondent was deliberately served with contaminated chicken when an order for a "5 in 1 Zinger Classic Chicken Box" was made by him at KFC Jorhat, on 16.10.2020. She submits that there are ingredients of Section 406 of the Indian Penal Code, 1860 in the instant case, as well as Sections 272/273 of the Indian Penal Code, 1860. She also submits that as an ordinary consumer/citizenship may not be knowing about the nitty- gritty of the Food Safety and Standards Act, 2006. In the FIR lodged by the informant against the petitioner, specific allegations are made against the petitioner of serving Crl.Pet./592/2020 Page 5 Page 6 of 10 contaminated chicken to the respondent No. 2 after he ordered for the same.
10. She also submits that the case of the petitioner does not fall within any of the parameters laid down by the Apex Court in the case of "Bhajan Lal Vs. State Of Haryana," reported in "(1992) Supp.(1) SCC 335." She, therefore, submits that the instant criminal petition filed by the petitioner praying for quashing of the FIR may be dismissed.
11. I have considered the submissions made by the learned counsel for both sides. I have also perused the case records very carefully.
12. In the case of "Bhajan Lal Vs. State Of Haryana," (supra), the Apex Court has observed that though the power of the High Court Apex Court has observed that though the power of the High Court under Section 482 of the Code of Criminal Procedure, 1973 has to be used sparingly. However, in paragraph No.102 of the said judgment in clause (6), it has observed that where there is an express legal bar engrafted in any of the provision of the code or the concern Act(under which criminal proceeding is instituted) to the institution and continuance of proceedings and/or where there is a specific provision in the code or the concerned Act, providing efficacious redress for grievance of the aggrieved party, the Crl.Pet./592/2020 Page 6 Page 7 of 10 powers under Section 482 of the code may be exercised to prevent the abuse of process of law or to secure the ends of justice.
13. The main allegation in the present case is that, when the respondent No. 2, on 16.10.2020, ordered for a "5 in 1 Zinger Classic Chicken Box" from KFC, Jorhat, he was served with a highly rotten and foul-smelling stuff, he lodged the FIR, on the basis of which Jorhat P.S. Case No. 2257/2020 was registered.
14. The main plea of the learned counsel for the petitioner is that, after passing of the Food Safety and Standards Act of 2000, the provisions of Sections 272/273 of the Indian Penal Code, 1860 have become redundant, and the matter ought to have been dealt with under the provision of said Act.
15. The Apex Court of India, Apex Court has observed in the case of "Ram Nath Vs. State of Uttar Pradesh and Others" reported in "(2024) 3SCC 502" as follows:-
"26. Thus, there are very exhaustive substantive and procedural provisions in FSSA for dealing with offences concerning unsafe food.
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 Crl.Pet./592/2020 Page 7 Page 8 of 10 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 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 273IPC. When the offences under Sections 272 and 273IPC 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 Crl.Pet./592/2020 Page 8 Page 9 of 10 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 273IPC. Therefore, there will not be any question of simultaneous prosecution under both the statutes."
16. From the above, it appears that the Apex Court has clarified the proposition of law that by virtue of Section 89 of Food Safety and Standards Act, 2006, Section 59 of the said Act will override the provisions of Sections 272 and 273 of the Indian Penal Code, 1860, therefore, there is no question of simultaneous proceedings under both the statutes. Section 42 of the of the Food Safety and Standards Act of 2000, provide for procedure for launching of the prosecution in case any offence under the provisions of Chapter 9 of the said Act has been violated. Under the said Act the prosecution has to be launched by Food Safety Officer and for initiation of prosecution the designated officer had to recommend prosecution sanction under Section 42(3) of the said Act. No prosecution sanction was obtained in the instant case, rather the respondent No. 2 directly lodged an FIR before the Officer-in-Charge of the Jorhat Police Station.
Crl.Pet./592/2020 Page 9 Page 10 of 10
17. In view of the judgment of the Apex Court discussed in the foregoing paragraphs, this Court is of the considered opinion that in the instant case also, the offence alleged to have been committed comes within the purview of Section 59 of the Food Safety and Standards Act, 2006 and, therefore, by virtue of Section 89 of the said Act the provisions of Food Safety and Standards Act shall have a overriding effect over provisions of Sections 273 and 272 of the Indian Penal Code, 1860, therefore, the criminal proceeding arising out of FIR, lodged by the respondent No. 2 on 16th October, 2020 on the basis of which Jorhat P.S. Case No. 2257/2020 was registered is liable to be quashed.
18. The proceedings arising out of Jorhat P.S. Case No. 2257/2020 is accordingly quashed and this criminal petition is, therefore, allowed.
19. Send a copy of this order to the Court of the learned Chief Judicial Magistrate, Jorhat.
JUDGE
Comparing Assistant
Crl.Pet./592/2020 Page 10