Patna High Court's bench of Justices P. B. Bajanthri and Alok Kumar Pandey disposed of Md. Islam v. State of Bihar (2024) Miscellaneous Jurisdiction Case (MJC) No.1538 of 2022 as not maintainable but granted liberty to file Civil Review Petition for recall of High Court's order by Chief Justice Sanjay Karol and Justice S. Kumar bench in a food adulteration case. The was filed on August 18, 2022 and registered on August 22, 2022. The case arose out of Civil Writ Jurisdiction Case/3332/2022 which was filed on February 22, 2022, registered on February 25, 2022 and disposed on April 25, 2022.
The petitioner had prayed for issuance of appropriate writ/direction/order for release of the Tata LPT 2515 Model Truck bearing Registration No. NL01D3907 Chasis No. 426031GTZ128632 and ENGINE No. 60G62495487, which was seized in connection with Sahebganj P.S. Case No. 444 of 2018, Muzaffarpur for the offences punishable under sections 272 and 273 of the Indian Penal Code (IPC), pending in the Court of A.D.J. -2nd cum Special Judge (Excise Act) Muzaffarpur, which was sent to the Collector cum District magistrate, Sitamarhi for its confiscation.
The section 272 of the IPC deals with “Adulteration of food or drink intended for sale". It states that "whoever adulterates any article of food or drink, so as to make such article noxious as food or drink intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
The section 273 of the IPC deals with "Sale of noxious food or drink". It reads: "whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both”.
The bare perusal of the Food Safety & Standards Act, 2006 demonstrates that all laws prevailing in the country related to to food, their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto was expressly and impliedly repealed. It is crystal clear that sections 272 and 273 of the IPC are repealed provisions of the IPC. Therefore, seizure for the offences punishable under sections 272 and 273 of the IPC in connection with Sahebganj P.S. Case No. 444 of 2018,
Muzaffarpur is legally questionable.
The section 89 of the Food Safety & Standards Act, 2006 gives it an overriding effect over all other food related laws. It reads: "Section— 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.” Notably, the Parliament in its wisdom has used the word ‘all food related laws ‘to avoid ambiguity and to declare that the Special Statute would prevail when it is in conflict with any other laws relating to food. In such circumstance, although the legislature did not amend Sections 272 and 273 of the IPC, by virtue of the overriding effect of the Food Safety & Standards Act, 2006, these provisions of IPC can be considered as impliedly repealed. The use the word ‘over all other related laws’ is not superfluous. The use of the term ‘over all other related laws’ describes the intent of the Parliament to avoid conflict of laws by consolidating of food related laws into a single law having jurisdiction over the whole of India.
It is also noteworthy that Section 97 (2) of the Food Safety and Standards Act provides that- “if there is any other law for the time being in force in any State, corresponding to this Act, the same shall upon the commencement of this Act, stand repealed and in such case, the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply as if such provisions of the State law had been repealed”. It is eminently apparent that the action of the police under sections 272 and 273 of IPC in connection with Sahebganj P.S. Case No. 444 of 2018,
Muzaffarpur is unwarranted. The police not being Food Safety Officer under Food Safety and Standards Act, 2006 are not empowered to investigate into the offences mentioned specially in the 2006 law.
The State had submitted before the High Court that during the pendency of this writ petition, final order of confiscation has been passed by the Confiscating Authority on November 30, 2021, for which notices were issued to the owner of the vehicle in question. The petitioner's counsel disputed this submission saying, "no notices were issued to the petitioner of the initiation of confiscation proceedings and same has been passed without any notice to him". But the writ petition was disposed of with liberty to the petitioner to avail the statutory remedy under the Excise Act against the order passed by the Confiscating Authority. Justice S. Kumar had authored the judgement in CWJC No. 3332 of 2022.
The judgement in Miscellaneous Jurisdiction Case No.1538 of 2022 was authored by Justice Bajanthri. It reads:"the present M.J.C. is filed for modification of order dated 25.04.2022 passed in C.W.J.C. No. 3332 of 2022. Petitioner in his writ petition has prayed for certain relief relating to release of the subject matter of seized vehicle with reference to order of the learned Additional District Judge-II-cum-Special Judge (Excise Act), Muzaffarpur. It is stated in the relief column “which has been sent to the learned Collector cum District Magistrate, Sitamarhi for its confiscation.” Such typographical error has been crept in petitioner’s writ petition. As long as petitioner’s writ petition is not rectified, it is not appropriate to rectify the order of the Co-ordinate Bench dated 25.04.2022 passed in C.W.J.C. No. 3332 of 2022." The judgement reserved liberty to the petitioner "to file Civil Review petition to recall the order dated April 25, 2022 passed in CWJC No. 3332 of 2022."
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