Bombay High Court
Virendrasing S/O Vijaysing Sisodiya … vs The State Of Maharashtra Thr. Pso … on 16 February, 2026
2026:BHC-NAG:2703-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 878 OF 2024
APPLICANT :- Virendrasing s/o Vijaysing Sisodiya,
(Thakur), Aged about 34 years,
Occu: Labourer, R/o At Post
Chandur, Tq. and District Akola.
..VERSUS..
RESPONDENTS :- 1) State of Maharashtra, through
Police Station Officer Barshitakli,
Police Station Barshitakli, Dist.
Akola.
2) Food Safety Officer, Food and Drug
Administration (MS), Akola.
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Mr Shyamsundar A Mohta, counsel for applicant.
Mr M.J. Khan, APP for respondents.
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CORAM : PRAVIN S. PATIL, J.
DATE OF RESERVE : 29/01/2026
DATE OF DECISION : 16/02/2026
JUDGMENT :
1. Heard. Rule. Rule made returnable forthwith. By
consent of learned counsel Mr. Shyamsundar A. Mohta for the
applicant and Mr. M.J.Khan, learned APP for respondents/ State,
the application is taken up for final hearing at the stage of
admission.
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2. The applicant herein challenges the registration of the
proceedings against him vide Crime No. 66 of 2015 for the offence
punishable under Sections 188, 273 and 328 of the Indian Penal
Code, 1860, read with Sections 26(2)(iv), 59(iii) of the Food
Safety and Standards Act, 2006, (for short ‘FSS Act 2006′),
registered at Police Station Barshitakli, District Akola.
3. In the present matter, admittedly, the Food Safety Officer
on 10/06/2015 lodged police complaint, alleging that on
06/06/2015 he had received secrete information that the applicant
was carrying contraband articles, and accordingly, the same was
seized from him.
4. It is further stated as per notification dated 20/07/2018
issued by Commissioner of Food Safety, Food and Drugs
Administration, Government of Maharashtra has prohibited the
manufacturer, storage, distribution, transport or sale of tobacco,
which is either flavored, scented or mixed with any of the
additives, whether packed or unpacked and/or sold as one product
or through separate packages products or distributed in such
manner so as to easily facilitate mixing by the consumer for its
consumption. Considering this notification, the offence is made out
against the present applicant, and accordingly, the Police Station
Officer registered the offence under above said provisions of the
Indian Penal Code as well as Food Safety and Standard Act, 2006
in the matter.
5. The applicant has invoked the jurisdiction of this Court
by stating that, as per the provisions of Section 89 of the FSS Act,
2006, the Act has an overriding effect over any other law insofar
as the law applies to the aspects of food in the field covered by the
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FSS Act, 2006. So also, it is stated that, considering the offence
under Section 188 of the Indian Penal Code, 1860, no Court can
take cognizance in view of the provisions of Section 195 of Cr.P.C.
So also, the other provisions cannot be split upon alleged offence
arising out of same transaction. Hence, on both counts, it is his
submission that the offence registered under the provisions of
Indian Penal Code are liable to be quashed and set aside aside.
6. Learned APP has strongly opposed the contentions of
the applicant and submission that as per the law laid down by the
Hon’ble Supreme Court of India in the case of State Of
Maharashtra vs Sayyed Hassan Sayyed Subhan reported in (2019)
18 SCC 145, there is no bar to register the offence under the
provisions of IPC as well as FSS Act, 2006. Hence, according to
him, the registration of the offence and the charge-sheet which is
already filed in the matter cannot be set aside, at this stage of the
matter.
7. In the light of the submissions of both the parties, the
judgment which was delivered by Hon’ble Supreme Court of India
in the case of Ram Nath Vs State of Uttar Pradesh and others
reported in (2024)3 SCC 502, is relevant and holding the field in
the present matter. In this judgment, the Hon’ble Supreme Court of
India has considered the judgment relied by learned APP of
Sayyed Hassan Sayyed Subhan referred (supra) and hold that,
considering the fact that the FSSA being a special statute and
having an overriding effect over any another provisions of law,
particularly considering Section 89 of the Act, observed that, the
legislature has taken a care by inserting Section 59 of FSS Act
2006 which is more stringent then the provisions of IPC, hence
there will be no question of simultaneous prosecution under both
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the statutes.
8. It will be relevant to refer the observations made by
Hon’ble Supreme Court of India in the case of Ram Nath referred
(supra), particularly paragraph Nos.27, 29 and 30, which is
reproduced as under:-
“27. In this context, we must consider the effect of
Section 89 of the FSSA. Section 89 reads thus:
“89. Overriding effect of this Act over all other food
related laws. — The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained
in any other law for the time being in force or in any
instrument having effect of virtue of any law other than this
Act.”
The title of the Section indeed indicates that the intention is
to give an overriding effect to the FSSA over all ‘food related
laws’. However, in the main section, there is no such
restriction confined to ‘foodrelated laws’, and it is provided
that provisions of the FSSA shall have effect notwithstanding
anything inconsistent therewith contained in any other law
for the time being in force. So, the section indicates that an
overriding effect is given to the provisions of FSSA over any
other law.
28….
29. Therefore, the main Section clearly gives overriding
effect to the provisions of the FSSA over any other law
insofar as the law applies to the aspects of food in the field
covered by the FSSA. In this case, we are concerned only
with Sections 272 and 273 IPC. When the offences under
Sections 272 and 273 of the IPC are made out, even the
offence under Section 59 of the FSSA will be attracted. In
fact, the offence under Section 59 of the FSSA is more
stringent.
30. The decision of this Court in the case of Swami
Achyutanand Tirth2 does not deal with this contingency at
all. In State of Maharashtra3, the question of the effect of
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Section 97 FSSA did not arise for consideration of this Court.
The Court dealt with simultaneous prosecutions and
concluded that there could be simultaneous prosecutions, but
conviction and sentence can be only in one. This proposition
is based on what is incorporated in Section 26 of the GC Act.
We have no manner of doubt that by virtue of Section 89 of
the FSSA, Section 59 will override the provisions of Sections
272 and 273 IPC. Therefore, there will not be any question of
simultaneous prosecution under both the statutes.”
9. In the circumstances, in view of the law laid down by
the Hon’ble Supreme Court of India in the case of Ram Nath referred
(supra), which is a binding precedent, the legal position is crystal
clear that the offence under the provisions of FSSA, can only be
registered against the applicant in the matter.
10. One other aspect which is required to be considered in
the present matter is that, the entire allegations against the present
applicant is of violation of the notification issued by Commissioner of
Food Safety dated 20/07/2018. As such, even if it considered that the
offence is rightly registered under the provisions of IPC under Sections
188 and 273 of IPC, it will be relevant to note that under Section 195
of Cr.P.C., there is a clear prohibition for the Court to take cognizance
punishable under Section 188 unless the complaint in writing is by
public servant by obtaining the requisite permission of Food
Commissioner of State, who has issued the notification. But
admittedly there is no such permission has been obtained before
registering the offence as well as for filing the charge-sheet. Thus,
statutory requirement under Section 195 of Cr.P.C. is not satisfied.
Furthermore, the offence under Section 273 of IPC is arising out of
same incident, and therefore, the same cannot be split up as per the
settled principal of law. Therefore, on this count also, the offence
under the provisions of IPC is not made out against the present
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applicant.
11. In respect of the offence under Sections 26 and 27 of the
FSS Act 2006, which speaks about the responsibilities of food business
operators and liability of manufacturer, packers, wholesalers,
distributors, a specific procedure is provided under Sections 41 and 42
of the FSS Act as to how the search, seizure, investigation, is to be
done in such cases. It says if the designated officer reach to the
conclusion that any contravention of the provisions of law is
punishable with a fine or imprisonment, he is required to obtain the
permission from the Commissioner of Food Safety before sanctioning
the prosecution.
12. In the present matter, there is nothing on record to
demonstrate Sections 41 and 42 is strictly followed while registering
the offence against the present applicant in the matter. In view of this,
in my opinion in absence of sanction of prosecution from competent
authority, the offence under Section FSS Act 2006 are also not made
out against the present applicant.
13. It is well settled position of law that if, for technical
reasons, the procedure adopted by the Investigating Officer is found to
be defective, liberty can always be granted to the authorities to initiate
appropriate proceedings in accordance with law in the matter.
14. In the present matter, considering the fact that the
applicant was carrying contraband articles which are prohibited for
the purpose of sale, purchase or manufacture etc. and specific
punishment is provided under Section 59 of FSS Act 2006, in my
opinion, respondent No.2 is at liberty to take appropriate steps, if so
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advised in the present matter.
15. In view of the above, the criminal procedure registered
against present applicant deserves to be quashed and set aside. Hence,
I proceed to following order.
ORDER
A] The criminal application is allowed.
B] The offence registered under Crime No. 66 of 2015 for
the offence punishable under Sections 188, 273 and 328
of the Indian Penal Code, 1860, read with Sections 26(2)
(iv), 59(iii) of the Food Safety and Standards Act, 2006,
(for short ‘FSS Act 2006′), is hereby quashed and set
aside.
C] Respondent No.2 is at liberty to initiate appropriate
proceedings in accordance with law, if so advised in the
facts and circumstances of the case.
16. Rule is made absolute in the aforesaid terms. No order
as to costs.
(PRAVIN S. PATIL, J)
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