‘Where an act or an 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.’
The Supreme Court has held that Food Safety Officers can lodge complaints alleging offences under the provisions of the Indian Penal Code against the persons transporting, stocking and/or selling the prohibited goods.
The bench comprising Justice SA Bobde and Justice L Nageswara Rao in State of Maharashtra vs. Sayyed Hassan Sayyed Subhan observed that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties. The opposite view adopted by the high court has been set aside.
Pursuant to complaints filed by the Food Safety Officer, the First Information Reports (FIRs) were registered for transportation and sale of Gutka/Pan Masala for offences punishable under Sections 26 and 30 of the Food and Safety Standards Act, 2006 and Sections 188, 272, 273 and 328 of the Indian Penal Code, 1860. The high court quashed the criminal proceedings with respect to IPC sections against the accused and declared that the Food Safety Officers can only proceed under the provisions of Chapter X of the FSS Act. It observed that Section 55 of the FSS Act provides for penalty for non-compliance of the directions of the Food Safety Officers. The state challenged this order before the Supreme Court.
The apex court bench differed with this view adopted by the high court that non-compliance of the provisions of the Act, Rules or Regulations or orders cannot be subject matter of a prosecution under IPC. “There is no dispute that Section 55 of the FSS Act provides for penalty to be imposed for non-compliance of the requirements of the Act, Rules or Regulations or orders issued thereunder by the Food Safety Officer. But, we are afraid that we cannot agree with the conclusion of the High Court that non-compliance of the provisions of the Act, Rules or Regulations or orders cannot be the subject matter of a prosecution under IPC unless expressly or impliedly barred. The High Court is clearly wrong in holding that action can be initiated against defaulters only under Section 55 of FSS Act or proceedings under Section 68 for adjudication have to be taken,” the bench said.
The bench interpreted the scope of Section 188 IPC and observed: “Section 188 of the IPC does not only cover breach of law and order, the disobedience of which is punishable. Section 188 is attracted even in cases where the act complained of causes or tends to cause danger to human life, health or safety as well. We do not agree with the High Court that the prohibitory order of the Commissioner, Food and Safety is not an order contemplated under Chapter X of the IPC.”
Referring to State of Rajasthan v. Hat Singh, the bench said that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts.
The court further, referring to earlier judgments, reiterated that there is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. “Where an act or an 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. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law,” the bench observed holding that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties.
With regard to the question whether offences are made out, the bench remanded the case to high court directing it to consider whether offences under Sections 188, 272, 273 and 328 of the IPC are made out in the FIRs which are the subject matter of the cases.