Food Safety and Standards Act Will Prevail Over Prevention of Food Adulteration Act To The Extent They're Inconsistent : Supreme Court

The Supreme Court recently (December 14) observed that in a case where an offense would attract the penal provisions under both the Prevention of Food Adulteration Act, 1954 (PFA), as well as the Food Safety and Standards Act, 2006, the provisions of the FSSA, will prevail over the PFA to the extent to which the same are inconsistent.

A Division Bench of Justices Abhay S. Oka and Sanjay Karol was hearing the matter.

In the instant case, the appellant was, at the relevant time, a Director of M/s. Bharti Retail Limited. 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, and on next day, the samples were sent to the State Food Laboratory. The report was received on 4 January 2011.

Now, on 5th August 2011, the PFA was repealed. The same was notified under subsection (1) of Section 97 of the FSSA. However, sub-section (4) of Section 97 of the FSSA provided 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.

With respect to the case, the Food Inspector filed a charge sheet on 12th August 2011. Pursuant to this, cognizance of the offence, under PFA, was taken against the appellant. The offence alleged was of misbranding. Consequently, the appellant approached the High Court to quash the proceedings. However, the High Court dismissed its plea noting that in view of sub-section (4) of Section 97 of FSSA, cognizance can be taken for an offence under PFA. In this aforenoted background, the matter approached the Supreme Court.

To begin with, the Court noted that the alleged offence is punishable under Section 16(1)(a) of the PFA. The said provision prescribes imprisonment for a term that may not be less than six months. Further, in a corresponding provision (Section 52) under FSSA, the punishment was in terms of penalty and not imprisonment.

Moving forward, the Court noted that though the PFA was repealed with effect from 5th August 2011, Section 3 of the FSSA which defines 'misbranded food' came into force on 28th May 2008. Thus, the offender could have been either sentenced to imprisonment under Section 16 of the PFA or under the FSSA, he could have been directed to pay the penalty. Thus, the question was, when the penal action could be taken under both statutes, which one would prevail?

In this respect, the Court adverted its attention to Section 89 of the FSSA. As per this provision, if there is an inconsistency between the provisions of the PFA and the FSSA, the provisions of the FSSA will have an overriding effect.

“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…. 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.,” the Court held.

Therefore, in a situation where the act of misbranding will attract penal provisions both under the PFA and the FSSA, the violator will be liable to pay a penalty under the FSSA per Section 52 thereof.

Given these facts and circumstances, the Apex Court quashed the pending criminal proceedings against the appellants. While doing so, the Court also clarified that this judgment will not prevent the authorities under the FSSA from taking recourse to the provisions of Section 52 following the law.

Case Title: MANIK HIRU JHANGIANI vs. THE STATE OF MADHYA PRADESH., Diary No.- 27038 - 2016

Citation : 2023 LiveLaw (SC) 1067

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