The Central Government by means of an order dated 24.02.2009 at Para-8 clearly says that periodical checks can only be under the Food Adulteration Act with an assistance of State Food Nutrition Board, which has been approved by the Hon'ble Supreme Court on 22.4.2009. The police checks and investigation would be contrary to the order of the Hon'ble Supreme Court and directions of the Central Government, where the Central Government is very clear that the Standards of a Scheme under the ICDS scheme is completely governed by the provisions ofFood Adulteration Act and with the assistance of the Food Nutrition Board. The Lokayukta has no power to investigate and assume the jurisdiction in respect of the subject control under the Central enactments in view of the judgment of the Supreme Court in AIR 1983 SC 150 Para-21 where the Central law prevails over the State Law and the Lokayukta Act is held to be a general statute and Food Safety Act is a special statute in AIR 1954 SC 752.
61. In 2011(2) Crimes 250 (All) (D.B) and 2011(4) Crimes 110 (All), it is held that in respect of a subject falls under the Food Safety Act, no charge sheet or FIR can be filed under the IPC. Para-26 of the said judgment reads as follows:
"26. It is not the case of the State Counsel that the carbonated drinks or juice based beverages are not intended for human consumption or that they are not substances for the purposes of section 3(zw). In PFA Act, standards were prescribed for various food articles in the Appendix B. In Appendix-B, carbonated water is defined in Entry A.01.01. By virtue of section 98, the rules including Appendix B has been temporarily transported to FSSA till the regulations under the FSSA are notified. Therefore, we are unable to agree with the arguments advanced on behalf of the State that theprovisions of the FSSA are not applicable in the instant case.
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 overriding effects over all other food related law 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 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 nonest. 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."
Section 4(1) of Cr P C provides that "All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained". Section 4(2) of Cr P C says "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 to otherwise dealing with such offences. Section 5 of Cr P C says "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 or procedure prescribed by any other law for the time being in force. Therefore, it is clear, by invoking IPC for supply of alleged substandard food, it is mandated to follow the special procedure laid down under FSSA. Without following the prescribed procedure test of samples as per the whims and fancies in a private unrecognized laboratory even prior to the FIR greatly prejudiced the petitioners. Even if IPC is invoked the special procedure laid down under FSSA for testing and declaring the product as substandard should have been followed. If that had been followed, the petitioners would have got the right to contest the test reports by way of testing the counter samples at the referral laboratory as per Section 43(2) of FSSA and this opportunity is denied to the petitioners.
Karnataka High Court
Christy Fried Gram Industry vs State Of Karnataka on 30 October, 2015
Author: L.Narayana Swamy
Citation;2016 CRLJ482 Karnat