Subir Banerjee & Anr vs State

Madhumati Mitra, J

In Re: C.R.R.311 of 2018

The petitioners have approached before this Court for quashing of the impugned charge-sheet vide charge-sheet No.86 of 2014 dated 31st March, 2014 under Sections 272/273 of the Indian Penal Code, 1860 arising out of Dankuni Police Station Case No.324 of 2013 dated 5th October, 2013 under Sections 272/273 of the Indian Penal Code pending before the Court of Learned Additional Chief Judicial Magistrate, Serampore, Hooghly.

The facts which are essential for consideration of the case of the present petitioners may be summarised as under:

The petitioner no.1 is a distributor of soft drinks and he is carrying on his business under name and style S. C. Trading situated near Nabagram Electric Supply Office, Post and Village-Bara Behare, Konnagar, Hooghly. On 1st May, 2011, the petitioner no.1 entered into an agreement with the company namely Varun Beverages Ltd. for distribution of soft drinks products, fruit juice and packaged drinking water under popular trade marks owned by Pepsico Inc. USA. The petitioner no.2 has been engaged by petitioner no.1 to act as sub-distributor under petitioner no.1.

On 5th October, 2013 one Smt. Mita Das (Rekha) wife of Niki Rekha of Dankuni Monoharpara Lane lodged an F.I.R. to the effect that on 5th October, 2013 at about 14 hrs. her husband Niki Rekha (23) purchased a Pepsi cold drink from the shop of said Binapani Mistanna Bhandar at Monoharpur Sk. Para and he consumed a little of the said drink after opening the sealed bottle. After a while he felt sick and started vomiting. He was shifted to Mother Land Nurshing Home, Dankuni wherefrom he was shifted to Uttarpara Arogya Niketan Nurshing Home. It was alleged in the F.I.R. that said drink was adulterated and the owner of the shop sold the said drink knowing it adulterated.

On the basis of the said F.I.R. a specific case was started against the present petitioners. The investigation ended in submission of charge-sheet against the both petitioners.

Case Diary was called for and learned advocate for the State has produced the Case Diary. During the pendency of the revisional application the petitioners filed one C.R.A.N. application being No.1780 of 2019 stating that the offence has been compromised in between the de-facto complainant and the present petitioners.

The learned advocate appearing for the petitioners has submitted that the alleged offences in between the present petitioners and the de-facto complainant have been compromised and settled.

During the course of hearing, learned advocate appearing for the petitioners has also submitted that provisions of Sections 272 and 273 of the Indian Penal Code are not applicable to the present case after the enactment of the Food Safety and Standards Act, 2006. According to his contention the alleged offences were taken place after the enforcement of the Food Safety and Standards Act with effect from 15.10.2007.

In support of his contention, he has drawn attention of the Court to the provisions of Section 42 of the Food Safety and Standards Act and contended that the procedural requirements have not been followed by the investigating officer while conducting the investigation which rendered the proceedings invalid.

Relying on the decisions of Bhaskar Tea and Industries Ltd., Calcutta vs. State [2008 (1) CHN 298], On Prakash Chaurasia & ors. vs. The State of West Bengal and T. Barai versus Henry Ah Hoe and another (1983) 1 Supreme Court Cases 177 learned counsel has submitted that after passing of the Food Safety Act the submission of charge-sheet under Sections 272/273 of the Indian Penal Code is not tenable in law.

On the other hand, the learned advocate appearing for the State of West Bengal has opposed the submission made by the learned advocate appearing of the petitioners.

It is the specific contention of the learned advocate for the State that the provisions of Sections 272 and 273 of the Indian Penal Code have not been repealed and both the provisions are still in force in spite of the enforcement of Food Safety and Standards Act.

In support of his contention he has drawn the attention of the Court to Section 89 of the said Act and submitted that the provisions of The Food Safety and Standards Act, 2006 shall have overriding effect only in case of inconsistency with any other law for the time being inforce. According to his contention, the provisions as contained in Sections 272 and 273 of the Indian Penal Code are not inconsistent with the provisions of Food Safety and Standards Act and as such the question of overriding does not arise.

The Second Schedule of Food Safety and Standards Act, 2006 contains a list of several acts which have been repealed by enactment of Food Safety and Standards Act. The Second Schedule of the Act contains the names of the following Acts:

"THE SECOND SCHEDULE

The Prevention of Food Adulteration Act, 1954 (37 of 1954)

The Fruits Products Order, 1955

The Meat Food Products Order, 1973

The Vegetable Oil Products (Control) Order, 1947

The Edible Oils Packaging (Regulation) Order, 1998

The Solvent Extracted Oil, De-oiled Meal and Edible Flour (Control) Order, 1967

The Milk and Milk Products Order, 1992

Any other order issued under the Essential Commodities Act, 1955 (10 of 1955)"

The Second Schedule mentions about 8 Acts or orders in which not a single provision of Indian Penal Code has been mentioned. That means the relevant provisions of the Indian Penal Code under which the charge-sheet has submitted against the petitioners have not been repealed either by express provision or by necessary implication.

The contention of the learned advocate appearing for the petitioners that the criminal proceedings is not maintainable after passing of The Food Safety and Standards Act is not tenable in law. Sections 272/273 of the Indian Penal Code are not inconsistent with the provisions of the Food Safety and Standards Act. Moreover Sections 272/273 of the Indian Penal Code have not been repealed.

Having regard to the materials placed in the Case Diary and averments in the First Information Report, I am of the view that the present case does not come within the parameters for quashing of the criminal proceeding as laid down by our Hon'ble Apex Court in State of Haryana and others vs. Ch. Bhajan Lal and others and subsequent decisions. This is not a fit case to quash the proceeding. It cannot be said that continuance of the criminal proceedings against the present petitioners would be an abuse of the process of the Court.

However, at the time of hearing, learned advocate appearing for the petitioners raised certain points. The petitioners are hereby given liberty to raise all points as mentioned in their application that is in C.R.R.311 of 2018 before the learned trial court at appropriate stage.

With this observation, the revisional application being No. C.R.R.311 of 2018 stands dismissed.

Before parting with the matter, I would like to mention that the observations as made in the judgment should not be taken as an expression at any opinion regarding the merit of the criminal proceedings pending before the learned court below.

Let the Case Diary be handed over to the learned advocate appearing for the State immediately.

In view of the order passed in C.R.R.311 of 2018 the application being C.R.A.N.1780 of 2019 stands dismissed.

Urgent certified photostat copy of this order, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary formalities.