Food Safety & Standard Act Doesn't "Impliedly Repeal" S.273 IPC, Police Officer Not Debarred From Investigating Adulteration: Calcutta High Court

The Calcutta High Court has refused to quash three separate criminal proceedings initiated under Sections 272/273 (Adulteration of food or drink intended for sale), 420 (Cheating) and 120B (Criminal Conspiracy) of IPC, against manufactures of allegedly spurious food items.

In refuting the petitioner’s argument that the provisions under the Food Safety and Standard Act 2006 (“FSSAI Act”) impliedly debar the police from being able to conduct their own investigation into instances of food adulteration under the IPC, a single bench of Justice Subhendu Samanta held:

“The police is not specifically debarred to conduct investigation over the offence mentioned in Section 272/273 of IPC. It is true the police not being Food Safety Officer under FSS Act 2006 are not empowered to investigate into the offences mentioned specially in FSS Act. But nothing can debar police to investigate an offence punishable under IPC. The argument of implied repeal of Section 272/273 IPC appears to me not satisfactory or justified. Considering the same I am of a clear view that though a separate, specific, distinct procedure has been laid down in FSS Act 2006 to initiate/launch a proceeding against the offender of Food Laws that does not ipso facto debar the police to initiate/register a case u/s 272 or 273 of IPC. Thus in my view the investigation conducted by the police according to the provisions of Cr.P.C for the offence punishable u/s 272/273 IPC is maintainable.”

Petitioners argued that the impugned criminal proceedings were a “gross abuse of process of court which if allowed to be continued would be tantamount to be the harassment beyond the scope of law of the land.”

It was argued that the FSSAI Act had after coming into effect in 2006, had consolidated the laws relating to Food and laid down specific “scientific standards to regulate the manufacture, Storage, Distribution sale and import to ensure availability safe and whole sale food and for matters connected therewith and instantly thereto.”

It was the contention of the petitioners, that the FSSAI Act had “expressly declared” that any violation relating to Food would be governed under it exclusively, and not under any other statute and that the charge sheet submitted by the police and their investigation was “unwarranted under law.”

Finally, the petitioners argued that s272 and s273 of the IPC being non-cognizable in nature, the police would have needed the order of a Magistrate u/s 155 CrPC to carry out their investigation, and that in the absence of the same, they invoked Section 420 and 120B of the IPC in a “colourable exercise” of power to assume cognizance, rendering the proceedings liable to be set aside.

The State on the other hand submitted that the police had seized large quantities of adulterated food from the petitioner’s possession, and that, “spurious food items (ghee) were also misbranded by the petitioner.

The respondents argued that the petitioners in their action of selling spurious food items had “cheated the public” and that, “investigation of the police ended in charge sheet with some distinct materials regarding prima facie involvement of the present petitioner in the alleged offence, and therefore, proceedings cannot be quashed.”

Upon hearing the arguments of the parties, the Court looked at Sections 272 and 273 of the IPC, which deal with the offences of and punishment for acts of adulteration and public sale of adulterated food or drink, as well as the corresponding FSSAI Act, which specified powers of “food safety officers.” It held:

In this particular matter it appears to me that the police has seized a huge amount of alleged adulterated items in all the three cases. In considering three cases before hand, in once case the Food Safety Officer has initially launched the prosecution and lodged FIR with the police. In other two cases, the police have initiated the proceeding. The provision of 272/273 of IPC has not [been] deleted. The law of the land empowers the investigating agency to investigate an offence according to the procedure laid down in the law, deviation thereto must have deprived the valuable right of the accused.

Finally, on the question of whether the FIRs were maintainable due to the investigation into non-cognizable offences having gone ahead without an order of the magistrate, as well as “colourable exercise of power” by the police in including the cognizable sections 420 and 120B of IPC to subvert the need for a magistrates order, the Court held that such a question can only be examined by the trial court, and the same could not be decided by the revisional court. It held:

To justify the prayer of the petitioners, this revisional Court has to assess the value of the materials collected by the police during investigation. In my view, this can only be done by the trial court at appropriate stage. At this juncture, whether the material collected by the police are justifiable or not to make out a case u/s- 420 or 120B IPC cannot be answered. So, the presence of Section 420 IPC in the FIR is whether a colourable exercise of police or nor; cannot be ascertained at this stage. It is true that Section- 420 IPC is non-cognizable in nature, the police may conduct investigation of non-cognizable case (u/s 272,273, IPC) with cognizable case (u/s- 420 IPC) without an order of Magistrate u/s 155 (4) Cr.P.C.

This revisonal court is hearing an application for quashing u/s 482 of the Code of Criminal Procedure. The petitioners are before this court for quashing of FIR including the entire criminal proceeding pending before the Learned Magistrate In principle, this revision court cannot look into the merit of the materials and surprisingly petitioners also don’t have the excess to the materials; mini trial at the stage of quashing by the revisional court is completely barred. Furthermore, in order to examine as to whether factual contents of FIR disclosed any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like a trial court. At such stage, this revisional court cannot appreciate evidences nor can it draw its own inference from contents of FIR and materials relied on. In my view, the application for quashing of FIR of a Criminal Case is not at all maintainable.”

Case: Sushil Kr. Gupta v The State of West Bengal & connected applications

Coram: Justice Subhendu Samanta

Citation: 2023 LiveLaw (Cal) 207

Click Here To Read/Download Judgment