Kerala High Court Dismisses Anticipatory Bail Pleas Of Restaurateur Alleged Of Causing Death Of Customer Who Consumed Adulterated Shawarma

The Kerala High Court on Wednesday refused to grant anticipatory bail to the restaurateur of 'Le Hayath Restaurant', who was alleged to have caused the death of a customer through adulterated and non-consumable 'shawarma'. 

Taking note of the serious nature of the prosecution allegations, as well as the violation of the mandatory guidelines issued to the hotels, Justice Mohammed Nias C.P. was of the considered view that proper investigation ought to be conducted in the matter. 

"The menace of supplying adulterated food from restaurants can lead to various health issues, including food-borne illnesses, allergies and long term health issues, besides resulting in food poisoning, digestive problems and in severe cases, pose a threat to life itself. Under such circumstances, I am not inclined to grant anticipatory bail to the petitioner," the Court observed. 

The prosecution allegation was that the petitioner accused who runs the hotel, prepared and sold adulterated and non-consumable shawarma, which was ordered by the brother of the de facto complainant via the food delivery app, 'Zomato'. It is alleged that the consumer was subsequently admitted to a hospital due to some physical ailments due to the consumption of the said foodstuff, and thereafter succumbed to death. 

Advocates Asaf Ali and Laliza T.Y. argued on behalf of the petitioner that the hotel was being run in a hygienic manner, and that of the 150 shawarmas that were sold on the fateful day, no one else had raised any complaint. The counsel averred that the deceased had been admitted in the hospital four days after consuming the food item, showing signs of severe septicemia, and multi-organ dysfunction. It was thus submitted that had the food item been adulterated or contaminated, other consumers who consumed food from the petitioner's hotel would also have shown the symptoms, which was not found herein. 

Additionally, it was argued that even if the prosecution allegations were admitted, only Section 284 of the IPC ('Negligent conduct with respect to poisonous substance') would be attracted, and not Section 308 IPC ('Attempt to commit culpable homicide'). The counsel emphasized that as per Section 89 of the Food Safety and Standards Act, 2006 ('FSS Act'), IPC is excluded with respect to acts covered under the FSS Act. The counsel thus submitted that the prosecution under the IPC would thus not be applicable, and that the punishment under the FSS Act would come into play.

Senior Public Prosecutor T.V. Neema, and Public Prosecutor M.C. Ashi opposed the plea, and averred that persons who had bought food through the Swiggy App and consumed the same from the hotel also had food poisoning. 

Findings of the Court

The Court, upon noting that persons who had consumed food from the hotel, both after ordering through the App, as well as directly from the place, got affected by food poisoning, rejected the petitioner's claim that the deceased might have consumed the food in violation of the warning on the bill regarding the food having to be taken within two hours of the preparation. 

The Court also rejected the claim that only Section 284 IPC would be applicable in the present case, and not Section 304. 

It found that Section 304 IPC had been incorporated after the death of the person who consumed the food from the hotel. It thus found the provision to be applicable in light of the prosecution allegation that the petitioner had knowledge that the supply of food in violation of the guidelines would be likely to cause death or injury. 

As regards the contention that the petitioner could only be prosecuted under the FSS Act, and not under the IPC, the Court found that there could not be any bar to a trial or conviction of an offender under two different enactments, although the offender could only be punished once. 

"Where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. In conceivable cases, the same set of facts can constitute offences under two different laws. An act or omission can amount to and constitute an offence under the IPC and, at the same time, an offence under any other law. A perusal of the provisions of the FSS Act shows that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties," it observed. 

It added that the expression 'same offence' in Section 300 Cr.P.C. read with Art.20(2) of the Constitution of India indicated that the offence for which the accused had been tried and the offence for which he is being tried again ought to be identical. 

"The subsequent trial is barred only if the ingredients of the two offences are identical and not when they are different, even though they may have resulted from the commission or omission arising out of the same set of facts. The initiation of a proceeding for the commission of an offence under a special enactment on the basis of a complaint cannot or shall not debar the police from taking action under the provisions of the IPC. As the ingredients that constitute the offence under both Acts are distinct, the bar is only to the punishment of the offender twice for the offence," it declared while dismissing the applications. 

Citation: 2023 LiveLaw (Ker) 695

Case Title: Shihad M.P. v. State of Kerala & Anr. 

Case Number: BAIL APPL. NO. 10350 OF 2023

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