Report No.264

4.15 The Allahabad High Court upheld the said contentions relying upon Section 5 of the IPC21 and observed;

"Section 272 IPC, reproduced hereinabove is attracted when a person adulterates an article of food with the intention to sell such an article or knowing that it is likely that the article will be sold as food or drink. In the instant case, there is no allegation in the FIR that the petitioner-company or its employees or agents had kept its products with the intention to sell the same or knowing that the products are likely to be sold as food or drink or that the said products were exposed or offered for sale.

The definite stand of the company was the articles seized were kept in the godown where even a board "not for sale" was also hanging at the time when the search was conducted. One thing is crystal clear that nothing in the Penal Code shall affect any provisions of any Special Act and when for any act or omission in a particular subject, a special set of rules have been framed, in that situation, the provisions of the IPC have to be ignored or overlooked. In the cases at hand FIRs have been registered under Sections 272 and 273 IPC pursuant to the impugned Government Order although adulteration of Food Stuff is covered by a Special Act i.e. The Food Safety and Standards Act, 2006."

4.16 It also added that:

"PFA Act was enacted for the prevention of adulteration of food, being a special Act, it eclipsed Sections 272 and 273 of IPC. In other words, the said Act made Sections 272 and 273 of IPC redundant as punishment provided under the PFA Act was much more (sic) man what was provided under Sections 272 and 273 IPC."

(Emphasis added)

4.17 The Court concluded observing: "that for adulteration of food or misbranding, after coming into force of the provisions of FSSA vide notification dated 29th July, 2010, the authorities can take action only under the FSS as it postulates an over- riding effects over all other food related law including the PFA Act. Therefore, invoking Sections 272 and 273 of the Indian Penal Code in the matter relating to adulteration of food pursuant to the impugned Government order is wholly unjustified and non est. Furthermore, it appears that the impugned Government Order has been issued without application of proper mind and examining the matter minutely and thus the State Government travelled beyond the jurisdiction."

4.18 The aforesaid observations / findings make it clear that, firstly 'the subject matter of prosecution was not for sale' and secondly, the provisions of Food Act would prevail and the procedure prescribed under the State Act would be applicable as the provisions of s.272 and s.273 IPC stood eclipsed.

4.19 It is a legal proposition that there is a presumption against an implied repeal.22 Whenever the legislature enacts a statute, it is presumed that it proceeds with legislation with a complete knowledge of all existing laws pertaining to the same subject and the failure to add any particular law or part thereof in a repealing clause, would indicate that the intent was not to repeal a particular existing legislation or a part thereof. In case the two laws - earlier and later enacted laws - cannot stand together, the implied repeal may be inferred for the reason that the later laws abrogate earlier contrary laws. It is to be kept in mind that the repugnancy between the two statutes must exist in fact and not depend merely on a possibility.

4.20 It is a well-established principle that a special Act shall prevail over a general Act. It provides that the 'provisions' more specifically directed to the matter at issue prevails as an exception to or qualification of the provision which is more general in nature provided that the specific or special statute clearly includes the matter in controversy. This doctrine envisages the same as generalia specialibus non derogant (the provisions of a general statute must yield to those of a special one).

4.21 Where the special subsequent legislation is a complete code dealing with the entire subject matter, it will exclude the provision of a general law.23

4.22 The Food Act puts on guard any running food industry from indulging into any activity that may be detrimental to public health and safety. More so, the Food Act is still in the preliminary stage of implementation. The powers of the police under the Food Act will have to be reviewed to make its provisions more effective. In view of the above, if the Food Act is compared with sections 272 and 273 of IPC, the following picture emerges:

Sl. No.	Basis of differentiation	the Food Act	IPC
1.	Object	To regulate food industry as reflected from the long title, provisions contained in section 2 of the said Act and provisions mentioned thereinafter indicating the object underlying the Act.	These provisions have been enacted for protecting public health and safety
2.	Nature	Most of the provisions are regulatory to streamline the food industry and improve quality of food articles. Its contraventions have been made offences but from the scheme of the Act, it reflects that the making of such offences is incidental in nature which is to achieve the object of the Act.	Preventive and deterrent.
3.	Procedure	In Food Act, for enhancing quality of food articles, elaborate scheme has been given. For bringing awareness, emphasis has been laid on publicity and preventive measures and contraventions have been taken note of as a mechanism to fulfil the above.	Prompt action by the police on spot to prevent mass mishappening.
4.	Target Group	In view of the provisions contained in section 3 (n), (o) and (zd), manufacturers and persons connected therewith, as also food operators including organized vendors are subject to the provisions contained in Food Act, especially the penal ones.	Any person.
5.	Nature of the offence	Under section 69 of Food Act, the offences are compoundable. It shows offences have been created for brining improvement in the quality of food articles.	Under section 320 of Cr.PC, these sections do not find place. It shows that these offences are against the State and society at large.
6.	Effectiveness	The Food Act aims to improve the quality of food articles and conspicuously it is silent about arrest / detention of the offender and grant of bail to such an accused irrespective of seriousness of the offence.	Under the provisions of Cr.PC, the offence is cognizable. Police can take prompt action, arrest the accused, keep him in custody and he can be detained in jail till the bail is granted.

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