MANIK HIRU JHANGIANIversusSTATE OF M.P

                [2023] 16 S.C.R. 551 : 2023 INSC 1078



                           CASE DETAILS

                     MANIK HIRU JHANGIANI
                                    v.
                             STATE OF M.P
                  (Criminal Appeal No. 3864 of 2023)
                         DECEMBER 14, 2023
           [ABHAY S. OKA AND SANJAY KAROL, JJ.]
                             HEADNOTES
     Issue for consideration: The question arose when the penal action
can be taken under both the statutes-Food Safety and Standards Act, 2006
and Prevention of Food Adulteration Act, 1954, which statute would prevail.
    Food Safety and Standards Act, 2006 (FSSA) – ss. 52, 89 –
Overriding effect of this Act over all other food related laws:
      Held: Effect of s. 89 is that if there is an inconsistency between the
provisions of the PFA and the FSSA, s. 89 would operate, and provisions
of the FSSA would prevail over the provisions of the PFA to the extent
to which the same are inconsistent – Consequences of misbranding has
been provided under both the enactments, and there is inconsistency in
the enactments as regards the penal consequences of misbranding – Thus,
in a case where after coming into force of s. 52 of the FSSA, if an act of
misbranding is committed by anyone, which is an offence punishable u/s.
16 of the PFA and which attracts penalty u/s. 52 of the FSSA, s. 52 of the
FSSA would override the provisions of PFA – In view thereof, the violator
who indulges in misbranding cannot be punished under the PFA and he
would be liable to pay penalty under the FSSA in accordance with s. 52
thereof – On facts, on the day on which the alleged offence of misbranding
was committed, the offender-appellant could have been sentenced to
imprisonment u/s. 16 of the PFA and under the FSSA, he could have been
directed to pay the penalty up to Rupees 3 lakhs – Punishment under PFA
and the penalty under the FSSA cannot be imposed on the violator for the
same misbranding because it would amount to double jeopardy, prohibited
u/Art. 20(2) of the Constitution – Thus, when the penal action can be taken
                                   551
552          SUPREME COURT REPORTS                       [2023] 16 S.C.R.


under both statutes, FSSA would prevail – High Court erred in holding
that there is no inconsistency between the penal provisions relating to
misbranding under the PFA and the FSSA – Hence, the High Court ought
to have quashed the proceedings of the prosecution of the appellant u/s. 16
of the PFA – Impugned judgment and order set aside – Proceedings of the
criminal case pending before the Magistrate quashed – Prevention of Food
Adulteration Act, 1954 (PFA). [Paras 17, 18, 21]
       LIST OF CITATIONS AND OTHER REFERENCES
     T. Barai v. Henry Ah Hoe & Anr. [1983] 1 SCR 905:(1983) 1 SCC
177; Nemi Chand v. State of Rajasthan (2018) 17 SCC 448 – referred to.
     Hindustan Unilever Limited v. State of Madhya Pradesh [2020] 9 SCR
455:(2020) 10 SCC 751 – distinguished.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.3864 of 2023.
     From the Judgment and Order dated 13.05.2016 of the High Court of
M.P., Bench at Indore in MCRC No.10611 of 2015.
      Appearances:
     Sajjan Poovayya, Sr. Adv., V P Singh, Kamal Shankar, Ms. Arti Singh,
Atul N, Kshitiz Rao, Raghav Seth, Palash Maheshwari, Ms. Sanjanthi Sajan
Poovayya, Aakashdeep Singh Roda, Ms. Pooja Singh, B P Singh, Advs. for
the Appellant.
    Nirmal Kumar Ambastha, Pashupathi Nath Razdan, Mirza Kayesh
Begg, Ms. Maitreyee Jagat Joshi, Astik Gupta, Advs. for the Respondent.
       JUDGMENT / ORDER OF THE SUPREME COURT

                             JUDGMENT

      ABHAY S. OKA, J.
      1. Leave granted.
          MANIK HIRU JHANGIANI v. STATE OF M.P                           553


     FACTUAL ASPECTS
      2. Various provisions of the Food Safety and Standards Act, 2006 (for
short, ‘the FSSA’) were brought into force on different dates. The Prevention
of Food Adulteration Act, 1954 (for short, ‘the PFA’) was repealed with
effect from 5th August 2011, as provided in sub-section (1) of Section 97 of
the FSSA.
      3. The appellant was, at the relevant time, a Director of M/s. Bharti
Retail Limited, (for short, ‘Bharti’), a company that is engaged in the
business of operating retail stores under the name of ‘Easy Day’ having
its outlets all over the country. A Food Inspector appointed under the PFA
visited a shop owned by Bharti in Indore and purchased certain biscuit
packets from the shop. The visit was made on 29th November 2010. On
the next day, a panchnama was drawn, and the samples were sent to the
State Food Laboratory, Bhopal, for analysis and testing. The report of the
Public Analyst was received on 4th January 2011. On 4th August 2011, a
notification was issued under sub-section (1) of Section 97 of the FSSA
notifying 5th August 2011 as the date on which the PFA shall stand repealed.
In Section 97, and in particular in sub-section (1), there is a provision that
notwithstanding the repeal of PFA, any penalty, forfeiture, or punishment
incurred in respect of any offences committed under the PFA shall not be
affected by the repeal. Moreover, there is a sunset clause in the form of
sub-section (4) of Section 97 which provides for a sunset period of three
years from 5th August 2011 for taking cognizance of the offences under the
PFA. On 11th August 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 12th August 2011, and on the same
day, cognizance of the offence was taken by the learned 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 (for
short, ‘CrPC’) for challenging the order of cognizance. By the impugned
judgment, the High Court dismissed the petition under Section 482 of CrPC.
The High Court noted that the offence alleged against the appellant was of
misbranding which had taken place prior to the repeal of the PFA. Hence,
within a period of three years from the date of repeal, the learned Magistrate
was empowered to take cognizance in view of sub-section (4) of Section
554          SUPREME COURT REPORTS                        [2023] 16 S.C.R.


97 of FSSA. Being aggrieved by the said decision of the High Court, the
present appeal has been preferred.
      SUBMISSIONS
      4. The learned senior counsel appearing for the appellant made detailed
submissions. The learned senior counsel firstly pointed out that 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 28 th May 2008
and Section 52 of the FSSA, which provides for penalty for misbranding
was brought into force with effect from 29th July 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 29th July 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 would, therefore, submit that
with effect from 29th July 2010, the FSSA will govern misbranding and not
the PFA.
      5. The learned senior counsel also pointed out that the Prevention of
Food Adulteration Rules, 1955 (for short, ‘the PFA Rules’) continued to
remain in force till the repeal of the PFA. He pointed out that corresponding
rules under the FSSA, namely, the Food Safety and Standards (Packaging
and Labelling) Regulations, 2011 came into force on 5th August 2011. He
would, therefore, submit that Rule 32 of PFA dealing with standards for
labelling continued to operate till 5th August 2011. He submitted that only
because the Rules corresponding to Rule 32 of PFA Rules were not notified
on the date of commission of the offence, the appellant could not have been
prosecuted under the PFA for violation of a provision that was eclipsed by
Section 89 of FSSA. His submission is that after 29th July 2010, the regime
under the PFA dealing with misbranding will not apply.
     6. He submitted that though Rule 32 of the PFA Rules, the violation
of which has been alleged along with other offences under the PFA, was in
force on the date on which the alleged violation was committed, in view
of Section 89 of FSSA, Rule 32 will have no application. Learned counsel
pointed out that Section 97 of the FSSA was brought into force with effect
           MANIK HIRU JHANGIANI v. STATE OF M.P                            555
                    ABHAY S. OKA, J.


from 29th July 2010. He submitted that only because the Rules corresponding
to Rule 32 of the PFA Rules were not notified under the FSSA regime, the
respondent could not have proceeded under the provisions of PFA in the
light of Section 89 of the FSSA.
      7. He relied upon a chart tendered across the Bar, which contains a
comparison of the provisions regarding misbranding under both enactments.
He pointed out that for violation of the provisions regarding misbranding,
under PFA, the violator could be punished by imposing imprisonment of
up to three years. However, under the FSSA, there is a provision for a
levy of only a penalty up to Rupees 3 lakhs, as provided in Section 52. He
submitted that when two statutes are operating in the field prescribing a
penalty for the same offence and when an earlier statute contains a more
stringent penalty or punishment, the provision in the earlier statute will stand
repealed by necessary implication. He relied upon Clause (1) of Article 20
of the Constitution of India. He relied upon decisions of this Court in T.
Barai v. Henry Ah Hoe & Anr.1 and Nemi Chand v. State of Rajasthan2.
Lastly, he submitted that the High Court committed an error by relying upon
the sunset clause under sub-section (4) of Section 97 since the same was
not applicable in the facts of the case.
      8. Learned counsel for the respondent- State firstly urged that the acts
or omission constituting the alleged offence took place when the PFA was
not repealed though the FSSA was brought into force. Rule 32 of the PFA
was also in force on that date, the violation of which has been alleged by
the respondent. Learned counsel relied upon sub-section (4) of Section 97
of the FSSA, which permits cognizance of an offence under the PFA before
the expiry of three years from the date of the commencement of the FSSA.
He would submit that considering the principles laid down in sub-section
(4) of Section 97, the prosecution for violating the provisions of the PFA
Act and the PFA Rules will certainly be maintainable. He submitted that
after coming into force of the FSSA, all the provisions of PFA and the PFA
Rules continued to apply. Inviting our attention to Section 52 of the FSSA,
he submitted that even the Rules under the FSSA were not brought into



1   (1983) 1 SCC 177
2   (2018) 17 SCC 448
556            SUPREME COURT REPORTS                            [2023] 16 S.C.R.


force on the date the offence was committed. He would, therefore, support
the reasons recorded by the High Court in the impugned order. He relied
upon a decision of this Court in the case of Hindustan Unilever Limited v.
State of Madhya Pradesh3 in support of his submissions that the criminal
proceedings initiated under the PFA before its repeal and the punishment to
be imposed under the PFA after its repeal have been protected by Section
97 of the FSSA. He would, therefore, submit that the view taken by the
High Court calls for no interference.
       CONSIDERATION OF SUBMISSIONS
      9. We have given careful consideration to the submissions. The offence
alleged against the appellant is under Section 2(ix)(k), read with Rule 32
of the PFA, which was made punishable under Section 16(1)(a). In short,
the allegation was that the label on the food product of the appellant was
not in accordance with the requirements of the PFA and the Rules framed
thereunder. Therefore, the definition of ‘misbranded’ under Section 2 (ix)
will apply. Clause (ix) of Section 2 of PFA reads thus:
       “(ix) “misbranded”—an article of food shall be deemed to be
       misbranded—
             (a) if it is an imitation of, or is a substitute for, or resembles in a
             manner likely to deceive, another article of food under the name
             of which it is sold, and is not plainly and conspicuously labelled
             so as to indicate its true character;
             (b) if it is falsely stated to be the product of any place or country;
             (c) if it is sold by a name which belongs to another article of food;
             (d) if it is so coloured, flavoured or coated, powdered or polished
             that the fact that the article is damaged is concealed or if the
             articles is made to appear better or of greater value than it really is;
             (e) if false claims are made for it upon the label or otherwise;
             (f) if, when sold in packages which have been sealed or prepared
             by or at the instance of the manufacturer or producer and which


3     (2020) 10 SCC 751
          MANIK HIRU JHANGIANI v. STATE OF M.P                            557
                   ABHAY S. OKA, J.


          bear his name and address, the contents of each package are not
          conspicuously and correctly stated on the outside thereof within
          the limits of variability prescribed under this Act;
          (g) if the package containing it, or the label on the package bears
          any statement, design or device regarding the ingredients or the
          substances contained therein, which is false or misleading in any
          material particular; or if the package is otherwise deceptive with
          respect to its contents;
          (h) if the package containing it or the label on the package bears
          the name of a fictitious individual or company as the manufacturer
          or producer of the article;
          (i) if it purports to be, or is represented as being, for special
          dietary uses, unless its label bears such information as may
          be prescribed concerning its vitamin, mineral, or other dietary
          properties in order sufficiently to inform its purchaser as to its
          value for such uses;
          (j) if it contains any artificial flavouring, artificial colouring or
          chemical preservative, without a declaratory label stating that
          fact, or in contravention of the requirements of this Act or rules
          made thereunder;
          (k) if it is not labelled in accordance with the requirements of
          this Act or rules made thereunder;”
     10. The corresponding provision under the FSSA is clause (zf) of
Section 3 which reads thus:
     “(zf) “misbranded food” means an article of food–
          (A) if it is purported, or is represented to be, or is being–
          (i) offered or promoted for sale with false, misleading or
          deceptive claims either;
               (a) upon the label of the package, or
               (b) through advertisement, or
          (ii) sold by a name which belongs to another article of food; or
558          SUPREME COURT REPORTS                            [2023] 16 S.C.R.


           (iii) offered or promoted for sale under the name of a fictitious
           individual or company as the manufacturer or producer of the
           article as borne on the package or containing the article or the
           label on such package; or
           (B) if the article is sold in packages which have been sealed or
           prepared by or at the instance of the manufacturer or producer
           bearing his name and address but–
                 (i) the article is an imitation of, or is a substitute for, or
                 resembles in a manner likely to deceive, another article
                 of food under the name of which it is sold, and is not
                 plainly and conspicuously labelled so as to indicate its true
                 character; or
                 (ii) the package containing the article or the label on the
                 package bears any statement, design or device regarding
                 the ingredients or the substances contained therein, which
                 is false or misleading in any material particular, or if the
                 package is otherwise deceptive with respect to its contents;
                 or (iii) the article is offered for sale as the product of any
                 place or country which is false; or
      (C) if the article contained in the package–
           (i) contains any artificial flavouring, colouring or chemical
           preservative and the package is without a declaratory label stating
           that fact or is not labelled in accordance with the requirements
           of this Act or regulations made thereunder or is in contravention
           thereof; or
           (ii) is offered for sale for special dietary uses, unless its label bears
           such information as may be specified by regulation, concerning its
           vitamins, minerals or other dietary properties in order sufficiently
           to inform its purchaser as to its value for such use; or
           (iii) is not conspicuously or correctly stated on the outside thereof
           within the limits of variability laid down under this Act.”
     Sub-clause (A) (i) deals with food being offered or promoted for sale
with false, misleading or deceptive claims upon the package's label.
           MANIK HIRU JHANGIANI v. STATE OF M.P                           559
                    ABHAY S. OKA, J.


      11. Under Section 16 of PFA, penalties have been prescribed. Under
clause 1(i) of sub-section (1) of Section 16, misbranding within the meaning
of Clause (ix) of Section 2 is an offence punishable with imprisonment for
a term which may not be less than six months, but it may extend to three
years and with a fine of the minimum amount of Rupees one thousand. The
procedure for taking cognizance is prescribed by Section 20.
     12. As against this, Section 52 of FSSA provides for penalties for
misbranded food. FSSA does not prescribe any punishment of imprisonment
for misbranding, but the power under Section 52 is to impose a penalty,
which may extend to Rupees 3 lakhs.
     13. Thus, 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.
     14. We must note here that Sections 4,5,6,7,8,9,10,87,88,91 and 101
were brought into force with effect from 15th October 2007. Section 3 of
the FSSA which defines ‘misbranded food’ came into force on 28 th May
2008. As noted earlier, Section 97 which provides for repeal of the PFA
was brought into force on 5th August 2011. Thus, the penal provisions of
the PFA were in force till 5th August 2011. In this case, the alleged offence
was committed on 29th November 2010. Thus, on that day, Section 52 of
FSSA was in force as also the provisions of the PFA and the PFA Rules.
    15. At this stage, we may refer to sub-section (4) of Section 97 of
FSSA, a sunset clause. Sub-section (4) of Section 97 reads thus:
     “(4) Notwithstanding anything contained in any other law for the time
     being in force, no court shall take cognizance of an offence under the
     repealed Act or Orders after the expiry of a period of three years from
     the date of the commencement of this Act.”
      16. Sub-section (4) provides that notwithstanding the repeal of the PFA,
cognizance of the offence committed under the PFA can be taken within
three years from the date of commencement of the FSSA. The implication
of sub-section (4) of Section 97 is that if an offence is committed under the
560          SUPREME COURT REPORTS                         [2023] 16 S.C.R.


PFA when the PFA was in force, cognizance of the crime can be taken only
within three years from the date of commencement of the FSSA.
      17. 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 of India. Thus, when the penal action can be taken
under both statutes, the question is which will prevail. An answer to the said
question has been provided by Section 89 of the FSSA, which 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 any instrument having effect by virtue of any law other than
      this Act.”
      18. The effect of Section 89 is 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.
When it comes to the consequences of misbranding, the same has been
provided under both the enactments, and there is inconsistency in the
enactments as regards the penal consequences of misbranding. As
pointed out earlier, one provides for imposing only a penalty in terms
of payment of money, and the other provides imprisonment for not less
than six months. In view of the inconsistency, Section 89 of the FSSA
will operate, and provisions of the FSSA will prevail over the provisions
of the PFA to the extent to which the same are inconsistent. Thus, in a
case where after coming into force of Section 52 of the FSSA, if an act
of misbranding is committed by anyone, which is an offence punishable
under Section 16 of PFA and which attracts penalty under Section 52 of
the FSSA, Section 52 of the FSSA will override the provisions of PFA.
Therefore, in such a situation, in view of the overriding effect givento
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.
            MANIK HIRU JHANGIANI v. STATE OF M.P                             561
                     ABHAY S. OKA, J.


     19. There are other arguments made by the learned senior counsel
appearing for the appellant. But we need not deal with the same as the
appellant must succeed on the abovementioned grounds.
       20. Reliance was placed on a decision of the Bench of three Hon’ble
Judges of this Court in the case of Hindustan Unilever Limited3. In this case, an
offence punishable under the PFA was committed in February 1989. The Trial
Court passed the order of conviction of the accused on 16th June 2015. Relying
upon sub-clause (iii) of clause (1) of Section 97 of the FSSA, this Court held
that the repeal of the PFA will not affect any penalty, forfeiture or punishment
incurred in respect of any offences committed under the PFA before its repeal.
Thus, when the offence was committed, the provisions of the FSSA were not on
the statute book. Therefore, the issue of conflict between the penal provisions
under the PFA and the FSSA did not arise before this Court. That is the reason
why this Court had not adverted to Section 89 of the FSSA, which deals with
a situation where there is a conflict between the provisions of the PFA and the
FSSA. As noted earlier, we are dealing with a case where the alleged act of
misbranding was committed when the relevant provisions of the FSSA, and
in particular, Section 52 thereof, were already brought into force. Therefore,
we are dealing with a situation where the act of misbranding will attract penal
provisions both under the PFA and the FSSA. Thus, Section 89 of the FSSA
comes into the picture which did not apply to the fact situation in the case of
Hindustan Unilever Limited3.
      21. In paragraph 19 of the impugned judgment, the High Court has
committed an error by holding that there is no inconsistency between the
penal provisions relating to misbranding under the PFA and FSSA. Hence,
in our view, the High Court ought to have quashed the proceedings of the
prosecution of the appellant under Section 16 of the PFA. Accordingly, the
impugned judgment and order dated 13th May 2016 is hereby set aside. The
proceedings of Criminal Case No. 15830 of 2011 pending before the Special
Judicial Magistrate, Indore, are hereby quashed. 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.
      22. The appeal is allowed on the above terms.


Headnotes prepared by:                                             Appeal allowed.
Nidhi Jain