Gauhati High Court
M/S Silver Drop Food And Beverages Pvt. ... vs The State Of Assam And 3 Ors on 28 May, 2019
Equivalent citations: AIRONLINE 2019 GAU 340, (2019) 200 ALLINDCAS 463 (2019) 3 GAU LT 474, (2019) 3 GAU LT 474
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/11
GAHC010205162016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 487/2016
1:M/S SILVER DROP FOOD AND BEVERAGES PVT. LTD. and ANR.
VILL- SILA MOHEKHATI, N.H. -31, AMINGAON, GUWAHATI-31, ASSAM.
2: SRI SANJEEB SHARMA
MANAGER OF M/S SILVER DROP FOOD AND BEVERAGES
PVT. LTD.
VILL- SILA MOHEKHATI
NH. -31
AMINGAON
GUWAHATI -31
ASSAM
VERSUS
1:THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER AND SECERETARY OF HOME DEPTT.
DISPUR, GUWAHATI-06, ASSAM.
2:SUPERINTENDENT OF POLICE
KAMRUP R
AMINGAON
GUWAHATI
ASSAM.
3:OFFICER INCHARGE
BAIHATA CHARIALI POLICE STATION BAIHATA CHARIALI
GUWAHATI
ASSAM.
4:MD. RUBUL CHOUDHURY
S/O LT. NABUWA CHOUDHURY VILL- BHOKHOLA HATI
L P.S. BIAHATA CHARIALI
KAMRUP
Page No.# 2/11
ASSAM
Advocate for the petitioners: Mr. S. Chamaria,
Mr. D. Sarmah and
Mr. M. Phukan.
Advocate for the respondents: Mr. B.J. Dutta, Addl. P.P., Assam.
BEFORE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN Date of hearing and judgment: 28.05.2019.
JUDGEMENT AND ORDER Heard the Mr. S. Chamaria, learned counsel for the petitioners as well as Mr. B.J. Dutta, learned Addl. P.P., Assam for the State respondents.
2. As has been held by the Hon'ble High Court of Karnataka in Lochamesh B. Hugar and others vs. Union of India and others, reported in 2014 (4) Crimes 244 (Karnt), " WATER, WATER EVERYWHERE, BUT NOT A DROP TO DRINK " (quotation from English Poet Samuael Taylor Coleridge), the present story depicted in the FIR reflects so.
3. One resident of Baihata Chariali, namely Rubul Choudhury being annoyed with the business run by the M/s. Silver Drop Food and Beverages Pvt. Ltd., situated as Sila Mohekhati at Amingaon (hereinafter referred to as 'the manufacturer'), suspecting the water bottles sold by the said manufacturer to be contaminated one which may cause health hazard to the people in general, lodged an FIR on 07.01.2016, before the officer-in-charge of the Baihata Chariali P.S. with the allegation that by such dealing of contaminated water by the said manufacturer, there is a apprehension that it will result health hazard to the person of the locality. The informant has also submitted some water Page No.# 3/11 bottles to the officer-in-charge concerned while filing the FIR but he has not indicated whether he has purchased those bottles as a customer or not. However on the basis of the aforesaid FIR, the Baihata Chariali P.S. Case No.11/2016, u/s.420/273 IPC was registered.
4. Challenging the registration of the said case, the present petition has been preferred by the manufacturer on the ground that in view of the special Act that has been enacted in regards to the food item i.e. the Food Safety and Standards Act, 2006 (in short 'the FSS Act') and the Food Safety and Standards (Food Products Standards and Food Additives) Regulation, 2011, registration of such an FIR is bad in law as food item is covered under the said Act and Regulation, including the packaged drinking water.
5. The learned counsel for the petitioners in his challenge to the aforesaid FIR has submitted that after coming into force of the FSS Act, every examination of the food article, suspected to be adulterous or contaminated is to be dealt with under the aforesaid Act and the police has no authority to register the case, as the Special Act has an overriding effect upon the IPC.
6. Elaborating the provisions of the aforesaid FSS Act, it has been submitted that under the said Act, it has been provided how to carry out the detection of adulteration of the food products as mandated u/s.40 and 41 of the FSS Act and such a strict adherence to the procedure is to be complied with prior to lodging a complaint about adulterated food. Accordingly it has been submitted that the instant FIR has been registered in violation of the provisions of Section 47(1)(a) and Section 47(1)(c)(iii) of the FSS Act, in as much as Rule 2.4.5(1) and (2) of the Food Safety and Standards Rules, 2011.
7. In support of his contention, the learned counsel for the petitioner Mr. S. Chamaria has also relied upon the decisions of M/s. Pepsico Indian Holdings (Pvt.) Ltd. and another vs. State of U.P. and others reported in MANU/UP/3189/2010, Prahlad Raghuvanshi @ Raja and others vs. State of Madhya Pradesh reported in 2013 (3) MPHT 54 and the decision of Christy Fried Gram Industry and others vs. Page No.# 4/11 State of Karnataka, reported in 2016 CriLJ 482, to submit that the provision of Sections 272/273 IPC has now become redundant in view of the special Act that has come into force.
8. I have gone through the decisions so relied upon by the petitioners, wherefrom it is found that the aforesaid aspects was elaborately dealt with in the above decisions.
9. In M/s. Pepsico (Supra), it has been held that Section 272 IPC is attracted when a person adulterates an article of food with the intention to sell such an article or knowing that it is likely that the article will be sold as food or drink. Further it is held that the Prevention of Food Adulteration (PFA) Act was enacted earlier for prevention of adulteration of food, being a special Act, it eclipsed Section 272 and 273 of IPC ineffective and made in redundant as punishment provided under the PFA Act, what was provided u/s.272/273 of the IPC.
10. Referring to the decision of the Punjab and Haryana High Court in Jatinder Kumar Jai vs. State of Punjab, 2008 (2) FAC 437, further it was held that registering an FIR without following the procedure laid down in the special statute is not permissible in law. The observation of the aforesaid case made in para 27 is reproduced below for proper appreciation of the matter in hand:
"In view of the aforesaid crystal clear legal proposition and particular provisions under the FSSA we are in agreement with the arguments advanced by the petitioner's Counsel that for adulteration of food or misbranding, after coming into force of the provisions of FSSA vide notification dated 29th July, 2010, the authorities can take action only under the FSSA as it postulates an over riding effects over all other food related laws including the PFA Act. In view of the specific provisions under the FSSA, the offences relating to adulteration of food that are governed under the FSSA after July 29,2010 are to be treated as per the procedures to be followed for drawing and analysis of samples as have been provided for. The provisions of penalties and prosecution have also been provided therein. Therefore, before launching any prosecution against an alleged offence of food adulteration, it is necessary for the concerned authorities to follow the mandatory requirements as provided under Sections 41 and 42 of the FSSA and, therefore, the police have no authority or jurisdiction to investigate the matter under FSSA. Section 42 empowers the Food Safety Officer for inspection of food business, drawing samples and sending them to Food Analyst for analysis. 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 Page No.# 5/11 the case of contravention punishable with imprisonment, he shall send his recommendations to the Commissioner of Food Safety for sanctioning prosecution. Therefore, invoking Sections 272 and 273 of the Indian Penal Code in the matter relating to adulteration of food pursuant to the impugned government order is wholly unjustified and non est. Furthermore, it appears that the impugned Government Order has been issued without application of proper mind and examining the matter minutely and thus the State Government travelled beyond the jurisdiction".
11. Similarly it has also been categorically discussed in the Christy Fried Gram Industry (Supra) that for initiation of any proceedings regarding manufacture and supply of food to general public are regulated under the FSS Act and a complete mechanism is provided under the said act to deal with the cases concerned with food related laws. Section 29 of the said Act specifies the authorities responsible for enforcement of the Act and Section 30 specifies the Commissioner of Food Safety as the competent authority to implement the provisions of the act effectively.
12. Thus referring to the decisions and the provisions under the Act, it has been submitted that only on the apprehension of a common litigant, regarding the adulterous food article to be dealt with by the petitioner manufacturer, the registration of the FIR is bad in law and liable to be quashed and set aside, by invoking the provision of Section 482 CrPC.
13. In this context, now it will also be relevant to discuss the provision of law under the FSS Act. Section 40 of the Act provided that even a purchaser can analyze the food if anybody have doubt upon the quality of food that was sold to him and he can also got examined such article by paying necessary fee etc., through a Food Analyst. Now in the instant case, it is to be noted that the said informant has not cleared his position as to whether he purchased the said water bottles from the petitioner's premises but however he has deposited some bottles to the officer-in-charge concerned at the time of filing of the FIR.
14. Now Sections 41 and 42 of the FSS Act make special provision as regards how an investigation is to be carried out whenever there is a reasonable doubt about commission of any offence relating to food item by the authority. The provisions of Sections 41 and 42 of the FSS Act are reproduced below Page No.# 6/11 for ready reference:
41. Power of search, seizure, investigation, prosecution and procedure thereof.-
(1) Notwithstanding anything contained in sub-section (2) of section 31, the Food Safety Officer may search any place, seize any article of food or adulterant, if there is a reasonable doubt about them being involved in commission of any offence relating to food, and shall thereafter inform the Designated Officer of the actions taken by him in writing:
Provided that no search shall be deemed to be irregular by reason only of the fact that witnesses for the search are not inhabitants of the locality in which the place searched is situated.
(2) Save as in this Act otherwise expressly provided, provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search, seizure, summon, investigation and prosecution, shall apply, as far as may be, to all action taken by the Food Safety Officer under this Act.
42. Procedure for launching prosecution.-
(1) The Food Safety Officer shall be responsible for inspection of food business, drawing samples and sending them to Food Analyst for analysis.
(2) The Food Analyst after receiving the sample from the Food Safety Officer shall analyse the sample and send the analysis report mentioning method of sampling and analysis within fourteen days to Designated Officer with a copy to Commissioner of Food Safety.
(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 wheresuch 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 Page No.# 7/11 purchaser if the sample was taken under section 40.
15. The above provisions indicate that only the Food Safety Officer can carry out such inquiry/investigation to determine the article as to whether the article is adulterated and only after obtaining a report from the Public Analyst, with due communication to the person concerned from whom the sample was collected and only after with due approval of the designated officer, a complaint can be lodged by the officer concerned.
16. Obviously in the present case neither the informant nor the police officer, who registered the case has adhered to the provision as laid down in the FSS Act to determine as to whether the said article was contaminated/ adulterated, as alleged by the informant. Such an FIR has been registered without exhausting the procedure to analyze the article in proper manner, as provided under the Act.
17. In this context, we may also deal with the provision 2, 4 and 5 of the CrPC, which have a bearing in the issues before this Court. Section 2(c) of the CrPC defines cognizable offence as an offence in which a police officer may, in accordance with the law for the time being in force, arrest without warrant. In the present case, the FIR prima facie does not constitute a cognizable offence so as to register the case.
18. Section 4 of the CrPC reads as under:
"4. Trial of offences under the Indian Penal Code and other laws.-
(1) All offences under the Indian Penal Code (45 of 1860 ) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences ".
19. In view of the provision u/s.4(2) CrPC, it is indicated that all offence under the other law shall be enquired under the Act in force, regulating the manner. The FSS Act is a complete statute which has provided, to deal with food and safety related matters and it can deal with all related food items Page No.# 8/11 including water and that being so, the registration of the FIR bypassing the special statute i.e. the FSS Act is another lacuna.
20. Section 5 of the CrPC also provides that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
21. The conjoint reading of Sections 2, 4 & 5 of the CrPC, it reveals that special Act will override the provision of the CrPC and in view of the matter, the registration of the FIR immediately, simply on the allegation of the person concerned, is also not proper.
22. Showing concern about registration of criminal case in such matter and no proper implementation of the mechanism that has been specified in the FSS Act, the Hon'ble Apex Court in Centre for Public Interest Litigation vs. Union of India and others, (2013) 16 SCC 279, it has been observed that in any view, we notice that the Act provides for a machinery for examining the grievances and if a citizen has got any complaint with regard to the ingredients of any soft drinks, he can approach the machinery. Section 40 of FSS Act also enables the purchaser of any article of food to get analyzed such food from the Food Analyst after informing the food business operator at the time of purchase of his intention to have such article so analyzed. The Statute also provides penal provisions in case there is a contravention or non-compliance of the regulations framed.
23. For better appreciation of the matter, we may profitably reproduce the observation of the Hon'be Apex Court in Centre for Public Interest Litigation (Supra) as below:
" 8. FSS Act has been enacted to consolidate laws relating to food and to establish the Food Safety and Standards Authority in India for laying down science based standards for articles of food. The Act is also intended to regulate the manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption. The Act is based on international legislations, instrumentalities and Codex Alimentarius Commission (CAC). CAC was created in 1961/62 by the Food Page No.# 9/11 and Agricultural Organization of United Nations (FAO) and WHO to develop the food standards, guidelines and related texts such as codes of practice under the Joint FAO/WHO Food Standards Programme. The main purpose this programme is to protect the health of consumers, ensure fair practices in the food trade, and promote coordination of all food standards work undertaken by international governmental and non-governmental organizations. "Codex India" the National Codex Contact Point (NCCP) for India, coordinates and promotes Codex activities in India in association with the National Codex Committee and facilitates India's input to the work of Codex through an established consultation process.
9. The Act empowered the Central Government to constitute the Food Safety and Standards Authority of India (hereinafter being referred to as "the Food Authority") under Section 4 of the FSS Act. The Food Authority is also authorised to constitute a Central Advisory Committee, so also Scientific Panels. Section 13 of the FSS Act states that the Food Authority shall establish scientific panels which shall consist of independent scientific experts with representatives of industry and consumer organisations in its deliberations. The Food Authority may also establish as many scientific panels, as it considers necessary, in addition to panels on food additives, flavourings, processing aids and materials in contact with food; pesticides and antibiotics residues. The Food Authority, under Section 14 of the FSS Act, can also constitute Scientific Committee consisting of Chairpersons of Scientific Panels and six independent scientific experts not belonging to any of the scientific panels. The Committee shall be responsible for providing the scientific opinions to the Food Authority and shall have the powers for organising public hearings. The Scientific Committee shall provide opinion on multi- sectoral issues falling within the competence of more than one Scientific Panel and set up working groups on issues which does not fall under scientific panels. The duties and functions of the Food Authority have been elaborately dealt with in Section 16 of the FSS Act, which states that it shall be the duty of the Food Authority to regulate and monitor the manufacture, processing, distribution, sale and import of food, and shall specify, by regulations, the standards and guidelines in relation to articles of food, mechanisms and guidelines for accreditation of certification bodies engaged in certification of food safety management systems for food businesses and notify the accredited laboratories etc".
24. The Apex Court has also shown its concern over such issues of contaminated articles largely used by different business segment as quoted below:
"21. We may emphasize that any food article which is hazardous or injurious to public health is a potential danger to the fundamental right to life guaranteed under Article 21 of the Constitution of India. A paramount duty is cast on the States and its authorities to achieve an appropriate level of protection to human life and health which is a fundamental right guaranteed to the citizens under Article Page No.# 10/11 21 read with Article 47 of the Constitution of India.
22. We are, therefore, of the view that the provisions of the FSS Act and PFA Act and the rules and regulations framed there under have to be interpreted and applied in the light of the Constitutional Principles, discussed above and endeavour has to be made to achieve an appropriate level of protection of human life and health. Considerable responsibility is cast on the Authorities as well as the other officers functioning under the above mentioned Acts to achieve the desired results. Authorities are also obliged to maintain a system of control and other activities as appropriate to the circumstances, including public communication on food safety and risk, food safety surveillance and other monitoring activities covering all stages of food business.
23. Enjoyment of life and its attainment, including right to life and human dignity encompasses, within its ambit availability of articles of food, without insecticides or pesticides residues, veterinary drugs residues, antibiotic residues, solvent residues, etc. But the fact remains, many of the food articles like rice, vegetables, meat, fish, milk, fruits available in the market contain insecticides or pesticides residues, beyond the tolerable limits, causing serious health hazards. We notice, fruit based soft drinks available in various fruit stalls, contain such pesticides residues in alarming proportion, but no attention is made to examine its contents. Children and infants are uniquely susceptible to the effects of pesticides because of their physiological immaturity and greater exposure to soft drinks, fruit based or otherwise.
24. We, therefore, direct the Food and Safety Standards Authority of India, to gear up their resources with their counterparts in all the States and Union Territories and conduct periodical inspections and monitoring of major fruits and vegetable markets, so as to ascertain whether they conform to such standards set by the Act and the Rules.
25. Penal provisions are also provided in the Act. It is, therefore, of utmost importance that the provisions of the Acts are properly and effectively implemented so that the State can achieve an appropriate level of human life and health, safeguarding the right to life guaranteed under Article 21 of the Constitution of India.".
25. From the aforesaid legal pronouncement as well as the legal provision as discussed above, it can be seen that of-course the issue regarding contaminated/ adulterated water is a sensitive matter over which the Highest Court of the country has also shown concern, as indicted above but for the purpose of such ascertainment of adulterated article, one has to adhere to the specific provisions mandated under the specific Act and registration of a case on the part of the police, is neither mandated under the Act nor warranted under the circumstances. We may take note of the fact that Page No.# 11/11 while registering the case, the I.O. has not adhered to examine the aforesaid article that was submitted to him but he simply registered the case u/s.420/273 IPC. Such a registration of the FIR is not sustainable under the law.
26. The learned counsel for the State respondent, Mr. B.J. Dutta has not resisted the submission of the petitioner but has acceded to the legal pronouncement that has been discussed above that procedure for examination of a suspected article to be adulterous or not is mandatory under the special Act and one cannot bypass it.
27. In the light of the decisions and discussions as above, the aforesaid FIR dated 07.01.2016, pertaining to registration of Baihata Chariali P.S. Case No.11/2016, u/s.420/273 IPC, is hereby quashed and set aside. However the I.O. as well as the informant of the case is still at liberty to proceed with the matter on their own by approaching appropriate authority under the FSS Act, to get the article examined under the Act, as per the procedure and in that case, the concerned authority will proceed in accordance with law.
28. The petition stands disposed of accordingly.
JUDGE Comparing Assistant