2023 (2) TMI 654 - HC - Indian Laws

Adulteration of food products - Cognizance of offence punishable under Section 272/273 of the Indian Penal Code - Issuance of warrant of Proclamation and Attachment against Sri. C.M. Donati, Managing Director, Nestle India Limited - HELD THAT - It has become settled principle of law that Article 254 of the Constitution mandates if there is any inconsistency between the provision of a Central Act and a State legislature, the Central Act will prevail. From the attending facts of the case it is found that the alleged offence known to be committed on 18th August, 1998 when Public Analyst report confirmed that the content was adulterated food while cognizance was taken by the Trial Court on 29th June, 2000 after the prescribed period of the limitation which ex-facie is not permissible under the law and on this score alone the prosecution should be quashed. It has become settled principle of law that special law will prevail over and above the general legislation. The P.F.A. Act has extended certain rights to the accused person under Sections 11 and 13 of the P.F.A. Act. Launching of a prosecution under Sections 272 and 273 of the I.P.C., without following the procedure prescribed under this Special Act would amount to depriving an accused of his statutory right. On that score also the proceeding cannot be allowed to remain in force. Sections 272 and 273 of the I.P.C. are offences non-cognizable in nature. Therefore, police is not empowered to hold investigation without obtaining permission from the jurisdictional Magistrate. In this case provision of Section 155 (2) Cr.P.C. since has not been complied with it gives a fatal blow to the prosecution case and it is yet another point to justify an order of quashment. The criminal proceeding being G.R. Case No. 3181 of 1998 arising out of Bizpore Police Station Case No. 130 dated 18th September, 1998 under Sections 272/273 of the I.P.C. before learned S.D.J.M., Barrackpore (now A.C.J.M., Barrackpore) should not be allowed to remain in force to avert the abuse of process of law - Section 482 of the Cr.P.C. is invoked - the proceeding pending before the learned S.D.J.M. Barrackpore (as then was), presently learned Additional Chief Judicial Magistrate, Barrackpore is quashed. Application disposed off.

Summary

Issues Involved:
1. Validity of cognizance taken by the learned Sub-Divisional Judicial Magistrate (S.D.J.M.)
2. Applicability of the Prevention of Food Adulteration Act (P.F.A. Act) vis-à-vis Sections 272/273 of the Indian Penal Code (I.P.C.)
3. Repugnancy between State and Central legislation under Article 254 of the Constitution
4. Limitation period for taking cognizance under Section 468 of the Criminal Procedure Code (Cr.P.C.)
5. Procedure for investigation and prosecution under special laws versus general laws
6. Vicarious liability of corporate directors for offences committed by the company

Detailed Analysis:

1. Validity of Cognizance by S.D.J.M.:
The criminal revision challenges the order dated 29th June 2000 by the S.D.J.M., Barrackpore, taking cognizance of offences under Sections 272/273 of the I.P.C. and issuing a warrant of proclamation and attachment against the Managing Director of Nestle India Limited. The petitioner argued that the proceeding was barred by limitation and initiated based on a police report, which was impermissible under the P.F.A. Act.

2. Applicability of P.F.A. Act vis-à-vis Sections 272/273 of I.P.C.:
The petitioner contended that the P.F.A. Act, being a special law, provided an exhaustive procedure for inquiry and trial of food adulteration cases, thus rendering Sections 272/273 of the I.P.C. inapplicable. The P.F.A. Act was amended in 1976 to provide graded punishments and specified that offences under it were triable by a Magistrate, not by police investigation.

3. Repugnancy between State and Central Legislation:
Referring to Article 254 of the Constitution, the petitioner argued that the West Bengal Amendment Act, 1973, enhancing punishments under Sections 272/273 I.P.C., stood repealed by the Central amendment to the P.F.A. Act in 1976. The Supreme Court's rulings in cases like SAVERBHAI AMAIDAS and T. BARAI were cited to support the argument that Central law prevails over conflicting State legislation.

4. Limitation Period for Taking Cognizance:
The petitioner highlighted that the offence was known to be committed on 18th August 1998 (date of the Public Analyst's report), and the cognizance was taken on 29th June 2000, beyond the one-year limitation period prescribed under Section 468(2) of the Cr.P.C. for offences punishable with imprisonment not exceeding one year.

5. Procedure for Investigation and Prosecution:
The petitioner argued that the P.F.A. Act laid down specific procedures for sampling, analysis, and prosecution, which were not followed in this case. The police investigation without adhering to these procedures and without the required permission from the Magistrate under Section 155(2) Cr.P.C. was deemed illegal. The Supreme Court's judgments in Union of India vs. Ashok Kumar Sharma and JEEWAN KUMAR RAUT vs. CBI were cited to emphasize the precedence of special laws over general laws.

6. Vicarious Liability of Corporate Directors:
The petitioner argued that the Managing Director, Mr. C.M. Donati, who joined the company after the alleged offence date, could not be held criminally liable. The Supreme Court's ruling in HARSHENDRA KUMAR D. vs. REBATILATA KOLEY was cited to support that vicarious liability does not apply to penal offences unless specific involvement is proven.

Conclusion:
The court concluded that the criminal proceedings were not maintainable due to the expiration of the limitation period, non-compliance with the procedural requirements of the P.F.A. Act, and the absence of any direct involvement of Mr. C.M. Donati in the alleged offence. The proceedings were quashed to prevent abuse of the legal process. The judgment emphasized the precedence of special laws over general laws and the necessity of following prescribed procedures for prosecution under special statutes.