Food Adulteration : MP High Court Calls For Stringent Punishment So That Executive Is Not 'Tempted' To Invoke Preventive Detention

The Madhya Pradesh High Court has recently urged to the Legislature for either making provisions under the Indian Penal Code more stringent and deterrent or to prescribe higher punishment under the Food Safety and Standards Act so that the executive authority "is not tempted" to adopt measure of preventive detention in cases involving food adulteration.

A division bench comprising of Justice Sheel Nagu and Justice Vishal Mishra also advised the State Government to issue appropriate direction for counselling all the District Magistrates for strictly following the statutory procedural requirement under the National Security Act and decisions of the Apex Court.

"This Court thus beseeches the legislature to either make the provision under IPC more stringent and deterrent or prescribe higher punishment under Food Safety and Standards Act so the executive is not tempted to adopt the extraordinary measure of preventive detention in cases of food adulteration." The Court said.

The development came in a plea challenging the preventive detention order dated 11th January 2021 detaining the petitioner for a period of three months and also the extension order dated 7th April 2021 by way of which the detention was further extended.

Perusing the impugned orders, the Court was of the view that both the orders "did not expressly contain the recital" disclosing that the District Magistrate and the State Govt. were conscious of the fact of petitioner was in custody at the time of passing of the order of preventive detention.

"The person sought to be detained can act in the manner which is prejudicial to public order only when he enjoys personal liberty. If personal liberty is already curtailed by detaining the said person in a particular offence and as the case herein, then the question of such person enjoying personal liberty to indulge in activity which is likely to be prejudicial to public order does not arise." The Court observed at the outset.

Observing that no express indication as to why the preventive detention was necessary despite the petitioner being in custody was provided either by the Government or the DM, the Court held that the impugned orders "stand vitiated on the anvil of Art.14 of the Constitution of India and deserve to be struck down on the said sole ground."

However, the Court expressed it's anxiety that in the recent past the Court has faced several cases challenging order of preventive detention, where the proposed detenue was already in custody, but District Magistrates did not assign compelling reasons to adopt the extraordinary mode of preventive detention.

In view of this, the Court said:

"Preventive detention strikes at the very root of the right of personal liberty guaranteed by the most sacrosanct of the fundamental right, i.e. Art. 21 which protects life and personal liberty. It is for this reason that whenever State exercises such exceptional course of action in shape of preventive detention it needs to follow statutory procedural law prescribed under NSA to the hilt. Slightest of lapse in following mandatory procedural law laid down under NSA can render the entire exercise of preventive detention and the orders passed, a nullity."

"As such this Court advises the State to issue appropriate direction for counselling all the District Magistrates for strictly following the statutory procedural requirement not only under NSA but also those emanating out of decisions of Apex Court." The Court said further.

Noting that in view of the large number of cases of preventive detention coming to the fore arising out of incidents of manufacture of synthetic/adulterated milk, it was observed that provisions under IPC are not deterrent at all and therefore delinquents committing these offences continue to commit such offences with impunity.

"Chapter XIV of the Indian Penal Code stipulates offences affecting the public health, safety, convenience, decency and morals. Offences which are ordinarily alleged against manufacture of synthetic/adulterated milk, are punishable u/Ss. 272 & 273 IPC which provide maximum punishment of six months imprisonment or with one thousand rupees fine or both. These offences are non-cognizable, bailable and triable by Magistrate and therefore are totally inadequate to provide for punishment which is not commensurate to the gravity of the offence from the point of view of it's far reaching consequences over the health of infants, children and even adults." The Court observed.

In view of this, the Court asked the legislature to either make the provision under IPC more stringent and deterrent or prescribe higher punishment under Food Safety and Standards Act to deal with such situations.

"Registry is directed to communicate this order to the Chief Secretary of the Govt. of M.P. for taking suitable action to prevent recurrence of such incidents as enumerated above." The Court directed.

Title: Somkant Singh Vs. State of M.P.& others

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