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In this case, Supreme Court said, on the day on which the alleged offence was committed, the offender could have been sentenced to imprisonment under Section 16 of the PFA and under the FSSA, he could have been directed to pay the penalty up to Rupees 3 lakhs, however, the punishment under PFA and the penalty under the FSSA cannot be imposed on the violator for the same misbranding because as it will amount to double jeopardy, which is prohibited under Article 20(2) of the Constitution.
The Supreme Court has quashed criminal proceedings initiated against the then director of M/S Bharti Retail Ltd under the Prevention of Food Adulteration Act for misbranding a biscuit package in retail store run under the name of 'Easy Day' in view of overriding effect of the Food Safety and Standards Act, 2006.
A bench of Justices Abhay S Oka and Sanjay Karol noted inconsistency for the offence of misbranding between the repealed Prevention of Food Adulteration Act and Food Safety and Standards Act. Therefore, FSSA, which enjoined only penalty for the offence, would prevail due to its overriding effect.
In the case, the bench said, the High Court ought to have quashed the proceedings of the prosecution of the appellant, Manik Hiru Jhangiani under Section 16 of the PFA, repealed with effect from August 5, 2011.
Top court accordingly set aside May 13, 2016 order by the High Court, saying it has committed an error by holding that there is no inconsistency between the penal provisions relating to misbranding under PFA and FSSA.
The court quashed the proceedings of criminal case pending before the Special Judicial Magistrate, Indore. However, this judgment will not prevent the authorities under the FSSA from taking recourse to the provisions of Section 52 thereof in accordance with the law, It has further clarified.
In the case, on August 11, 2011, sanction was granted to the Food Inspector to prosecute the Directors of Bharti under the provisions of the PFA. The Food Inspector filed a charge sheet on August 12, 2011, and on the same day, cognisance of the offence was taken by the Judicial Magistrate, and a bailable warrant was issued against the appellant. The appellant filed a petition under Section 482 of the Code of Criminal Procedure, 1973, which was dismissed by the High Court.
The appellant's counsel submitted Section 3 of the FSSA, which contains the definition of ‘misbranded food’ in clause (zf) of sub-section (1) thereof, was brought into force on May 28, 2008 and Section 52 of the FSSA, which provides for penalty for misbranding was brought into force with effect from July 29, 2010. Secondly, he pointed out that even Section 89 of the FSSA, which starts with a non-obstante clause providing that the FSSA shall have overriding effect notwithstanding anything inconsistent contained in any other law for the time being in force, was notified on July 29, 2010. He submitted that, therefore, Section 52 of the FSSA, which provides for a penalty for misbranding, would prevail over the relevant provisions of the PFA, which make the misbranding an offence punishable with imprisonment and a fine. He submitted that with effect from July 29, 2010, the FSSA will govern misbranding and not the PFA.
"Under the provisions of the PFA, for misbranding, a person can be sentenced to imprisonment of a minimum six months with a fine of Rupees one thousand and more. However, for a similar violation under the FSSA, there is no penal provision in the sense that there is no provision for sentencing the violator to undergo imprisonment and to pay a fine. Under the FSSA, only a penalty of up to Rupees 3 lakhs can be imposed", Court noted.
According to sub-section (4) of Section 97, if an offence is committed under the PFA when the PFA was in force, cognisance of the crime can be taken only within three years from the date of commencement of the FSSA.
"In this case, on the day on which the alleged offence was committed, the offender could have been sentenced to imprisonment under Section 16 of the PFA and under the FSSA, he could have been directed to pay the penalty up to Rupees 3 lakhs. The punishment under PFA and the penalty under the FSSA cannot be imposed on the violator for the same misbranding because it will amount to double jeopardy, which is prohibited under Article 20(2) of the Constitution," the bench said.
However, the bench said, the question was when the penal action can be taken under both statutes, the question is which will prevail.
The court found the answer in Section 89 of the FSSA which stated that if there is an inconsistency between the provisions of the PFA and the FSSA, the provisions of the FSSA will have an overriding effect over the provisions of the PFA.
"Therefore, in such a situation, in view of the overriding effect given to the provisions of the FSSA, the violator who indulges in misbranding cannot be punished under the PFA and he will be liable to pay penalty under the FSSA in accordance with Section 52 thereof," the bench said.
Case Title: Manik Hiru Jhangiani vs. State of MP
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