TMI Blog2023 (2) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... unching 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-Divisional Judicial Magistrate, Barrackpore however, issued warrant of proclamation and attachment against the petitioner no. 2, C.M. Donati. 3. Assailing the said order Mr. Rajesh Batra, learned Counsel representing the petitioner submits that the proceeding pending before the S.D.J.M., Barrackpore is not maintainable being barred by limitation. The proceeding has been initiated on the basis of a police report which is impermissible. Dilating on the point Mr. Batra argues that Prevention of Food Adulteration Act, 1954 (hereinafter referred to as P.F.A. Act ) was enacted by the Parliament with effect from 29th September, 1954. It was a complete code providing for penalties and it provided an exhaustive procedure for inquiry and trial. The West Bengal Amendment in respect of four Central Acts so far as their operation within the State of West Bengal is concerned was made vide West Bengal Act No. XLII of 1973. Accordingly Prevention of Food Adulteration, Drugs and Cosmetics (West Bengal Amendment) Act, 1973 was brought into the statute book. This Act amended P.F.A. Act 1954. Sections 272 to 276 of the I.P.C. along with Schedule II to the Criminal Procedure Code, Act 5 of 1998 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General for Ontario v. Attorney-General for the Dominion [1896] A.C. 348), that though a law enacted by the Parliament of Canada and within its competence would override Provincial legislation covering the same field, the Dominion Parliament had no authority conferred upon it under the Constitution to enact a statute repealing directly any Provincial statute. That would appear to have been the position under section 107(2) of the Government of India Act with reference to the subjects mentioned in the Concurrent List. Now, by the proviso to article 254(2) the Constitution has enlarged the powers of Parliament, and under that proviso, Parliament can do what the Central Legislature could not under section 107(2) of the Government of India Act, and enact a law adding to, amending, varying or repealing a law of the State, when it relates to a matter mentioned in the Concurrent List. The position then is that under the Constitution Parliament can, acting under the proviso to article 254(2), repeal a State law. But where it does not expressly do so, even then, the State law will be void under that provision if it conflicts with a later law with respect to the same matter that may be ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Supreme Court pronounced in the case of T. BARAI VS. HENRY AH HOE ORS. reported in (1983) 1 SCC 177 wherein it is held:- A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254(1). 9. Drawing my attention to the facts of the case Mr. Batra learned Counsel submits that alleged noxious sample was purchased on 5th April, 1998 whereupon Public Analyst report was filed on 18th August, 1998. F.I.R. was registered on 18th of September, 1998. Therefore, the offence should be considered to have been committed on 18th August, 1998 i.e. the date when public analyst report was filed and the period of limitation of one year after taking cognizance expired on 17th August, 1999. While learned Trial Court took cognizance of offence vide order dated 29th June, 2000 beyond the prescribed pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the Government of India or the provisions of any special or local law. 12. It is submitted further that for any special law or local law for the time being in force if contemplates any special jurisdiction or power or any special form of procedure is prescribed, unless there is something to the contrary to be found, it is the provisions of the special law or the local law which would prevail. To buttress his point Mr. Batra relied upon a decision of Hon ble Apex Court pronounced in the case of Union of India vs. Ashok Kumar Sharma Ors. reported in 2020 SCC Online 686 wherein Hon ble Apex Court held:- 162. Thus, we may cull out our conclusions/directions as follows: I. In regard to cognizable offences under Chapter IV of the Act, in view of Section 32 of the Act and also the scheme of the CrPC, the Police Officer cannot prosecute offenders in regard to such offences. Only the persons mentioned in Section 32 are entitled to do the same. II. There is no bar to the Police Officer, however, to investigate and prosecute the person where he has committed an offence, as stated under Section 32(3) of the Act, i.e., if he has committed any cognizable offence un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a situation of this nature, the respondent could carry out investigations in exercise of its authorization under Section 13(3)(iv) of TOHO. While doing so, it could exercise such powers which are otherwise vested in it. But, as it could not file a police report but a complaint petition only; Sub-section (2) of Section 167 of the Code may not be applicable. 27. The provisions of the Code, thus, for all intent and purport, would apply only to an extent till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO. 28. To put it differently, upon completion of the investigation, an authorized officer could only file a complaint and not a police report, as a specific bar has been created by the Parliament. In that view of the matter, the police report being not a complaint and vice-versa, it was obligatory on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mukherjee, learned Police Prosecutor has relied upon the judgement of Hon ble Supreme Court pronounced in the case of STATE OF MAHARASHTRA ANR. VS. SAYYED HASSAN SAYYED SUBHAN ORS. reported in (2019) 18 SCC 145 wherein it is held:- 7. 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. 1. 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. 2 The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows: Provisions as to offences punishable under two or more enactments Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held:- 20. In, the result, I hold the following: a. The West Bengal Act No. 42 of 1973 enhancing the punishment to life imprisonment with a proviso thereto has stood impliedly repealed in view of the decision of the Hon'ble Supreme Court in . b. Original Section 272 of the IPC which is a Central enactment is not repugnant to Section 16(1A) of the PFA Act. They can stand together. c. No sanction is necessary for prosecution under Section 272 of the IPC. d. Whether the Article of food is noxious or not cannot be decided in the revisional forum. e. The decision in Standard Chartered is applicable in the instant case. f. The liability of the company being a statutory liability the distinction between strict liability and absolute liability has reached a vanishing point. 18. Judgement in Bhaskar Tea Industries Ltd. (supra) has recognized the West Bengal Act No. XLII, 1973 stand impliedly repealed and trial under Sections 272/273 of the I.P.C. as stood prior to amendment can continue. But as rightly pointed out by Mr. Batra, in Bhaskar Tea Industries (supra) limitation for launching prosecution was never an issue before Hon ble Co- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the earlier special law is evident from general law, then the later general law will prevail. When the later general law is repugnancy or inconsistency, the later special law will prevail over the earlier general law. 23. 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. 24. In this regard we can profitably rely upon the judgement of Hon ble Supreme Court pronounce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 25. The petitioner no. 2, Mr. C.M. Donati joined the Company as it appears from the certified copy of Form 32 issued by office of the Register of Companies with effect from 1st July, 1998 while the sampling of the alleged adulterated product was done on 5th April, 1998, when the petitioner no. 2 was not associated with the petitioner company. Therefore, he cannot be lumbered with criminal liability, as it is decided by the Hon ble Supreme Court in the case of HARSHENDRA KUMAR D. VS. REBATILATA KOLEY AND ORS. reported in (2011) 3 SCC 351 wherein it is held:- As noticed above, the Appellant resigned from the post of Director on March 2, 2004. The dishonoured cheques were issued by the Company on April 30, 2004, i.e., much after the Appellant had resigned from the post of Di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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