Calcutta High Court (Appellete Side)
Amal Chandra & Anr vs Unknown on 19 February, 2026
19.02.2026
Item No.8
Ct. No. 34
nb
CRR 1881 of 2023
In the matter of: Amal Chandra & Anr.
...... petitioners.
Mr. Dhrubaneel Biswas,
Mr. Sandeepan Dutta,
Mr. Subhadeep Maitra,
.... For the petitioners.
Ms. Anita Gaur,
Mr. Nahid Ahmed,
...... for the State.
1. This revisional application has been filed under Section
482 read with Section 397/401 of the Code of Criminal
Procedure for quashing of proceeding under Duttapukur P.S.
Case No.202 of 2017 for commission of offence punishable under
Sections 272/273/420 of the IPC read with Section
103/104/108 of the Trademarks Act, 1999 pending before the
Learned Court of 5th Additional District & Session Judge,
Barasat.
Factual Matrix
2. The fact of the case in a nutshell is that the petitioner no.1
into the business of manufacturing food items and having a
registered company title as M/s. Origin Food Products and
subsequently the company of petitioner no.1 got the license in
manufacturing of Pickels made from vegetable or other edible
plant materials including mushrooms, Chilly Sauce, Jams, Fruit
Jellies and Marmalades, Pickles made from fruits Soyabean
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sauce and Tomato Ketchup and Tomato sauce. Petitioner no.1
obtained such valid and necessary licence from Food Safely and
Standards Authority of India vide licence no.1281701300018.The
petitioner no 1 further got their Trade Mark registered from the
concerned authority in the year 2008. The petitioner no 1 further
applied and obtained the necessary license from Pollution
Control Board, accreditation from JAS -ANZ, ISO certification
etc. to operate the said business in lawful manner.
3. The problem cropped up one very afternoon when the
petitioners were busy in their daily routine of business, the
opposite party no.2 and 4 and the respective team along with the
police force of Duttapukur P.S. conducted a raid in the factory of
petitioner no.1 on the ground of strength of a complaint vide
G.D.E. No.1595 alleging the petitioners are involved in
manufacturing and selling sauce, Jam, Jelly, Squash etc. which
are adulterated/noxious in nature for better profit. The opposite
party no.3 and 4 reached the spot at 13.55 p.m. and arranged
three local witnesses and conducted such raid and instructed
them to remain present with the police force. After the same, the
team also seized list of items on the premises and thereafter, the
proceeding was initiated. The present petitioner has come before
this Court for quashing of the entire proceeding.
Submission
4. Learned counsel for the petitioner contended that the
respondent no.4 while filing Charge Sheet did not utter a single
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word about the process of seizure of Food items nor mentioned
the seized items were sent to the designated testing Lab that is
the Public Analysits (Food &Water) West Bengal Public Health
Laboratory .It is the specific point raised by the Learned Counsel
that as per the decision of Christy Fried Gram Industry vs Sate of
Karnataka ,2016 Crl.LJ 482 the FSS Act itself is competent to
carry out such raids and prosecutions as the nature of offence is
alleged in this instant matter .It is further submitted that the
investigation as carried out by the I.O is beyond the jurisdiction
under the law and the respondent no 4 has no power or
jurisdiction to investigate the alleged offence as neither followed
the provisions of section 38,41,42 ,47 of the FSS Act depriving
the petitioner to prefer appeal under section 46(4) of the said Act.
5. In this regard, relied upon the decision of Sushil Kr.
Gupta Vs. The State of West Bengal(CRR No. 2795 of 2017)
and Ali Mohammad Bhat & Ors. VS. UT of J. & K(CRM(M)
No.310 of 2024),
6. It is further their stand that the respondent no 3 has
fabricated the story and alleged the instant petitioners for offence
under section 77/78/82 of the Trade Mark Act and Merchandise
Marks Act 1958 but changed the frame of allegations at the time
of filing charge sheet and slapped section 103/104/108 of the
Trade Mark Act 1999 without giving any opportunity of hearing
to the petitioner.
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7. The learned prosecution on the other hand relied upon the
decision of Ram Nath Vs. The State of Uttar Pradesh & Ors.
reported in 2024 INSC 138and would submit that the FIR was
registered alleging commission of offence under section 272 and
273 of the IPC but the view taken by PepsiCo India that from
when the FSSA Act was promulgated the provision would have
an overriding effect over the food related laws including section
272 and 273 of the IPC and it was held that the police has no
authority or jurisdiction to investigate a case under FSSA . The
Hon'ble Supreme court considered section 89 of the FSSA and
observed that section clearly gives an overriding effect to the
provisions of the FSSA over any other law in so far as the law
applies to the aspects of food in the field covered by the FSSA
.After the promulgation of the FSSA Act, it is settled that even if
the offences are committed under IPC Act that should have been
construed to have committed FSSAI Act and for that reasons that
has not been followed in this case and therefore, the
investigation suffers.
Analysis
8. Having heard both the learned counsel and goring through
the materials on record, it is clear that the allegation levelled
against the present petitioner under Sections 272/273/420
along with Trade Mark Act 1999 along with sections
103/104/108 and the charge sheet was submitted without
following the parameters as under FSSAI Act.
5
9. In view of the decision of Hon'ble Supreme Court in Ram
Nath Vs. The State of Uttar Pradesh & Ors., it was considered
that different provision of FSSAI Act was brought into force on
different dates from time to time. The last date of such order was
July 29, 2010 and all the provisions of FSSAI were in force as on
July 29, 2010 except Section 22. It was also held that in terms
of Section 29 of the Code of Criminal Procedure it provided that
"it shall be lawful for the Court of mandatory jurisdiction to pass
any sentence authorized under FSSAI except the sentence of
imprisonment for term exceeding six months in excess of its
power conferred under Section 29 of the Code of Criminal
Procedure". The offence related to food and food safely are
concerned there are provisions made in the FSSAI dealing with
all aspect of food safely and the Section 272 is an offence
adulteration of any local food or other since the act of FSSAI has
come into force in terms of Section 89 having an overriding over
being special statute, which has been overriding effect of this
case ever all other foods.
10. In the case of Sushil Kumar Gupta vs The state of west
Bengal the learned single Bench decided the issue whether the
police constituted under Police Act not being a Food Safety officer
under the Special Act namely Food Safety and Standard Act
2006 is empowered to investigate into this case
11. It was argued that on behalf of the petitioner that the
impugned proceeding is gross abuse of the process of court
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which if allowed to be continued that would be tantamount to be
the harassment beyond the scope of law of the land .The Food
Safety and Standard Act 2006 came to effect to consolidate the
laws relating to food safety Standard Authorities for laying
down science based Standards for articles of Food to regulate
their manufacture Storage Distribution Sale and import to
ensure availability safe and whole sale food and for matters
connected therewith and instantly thereto .With the introduction
of the Special Act it expressly declared that any violation relating
to Food shall be governed by Special Act and not under any other
Act .In the said case police seized huge amount of adulterated
food items from the possession of the petitioner .The learned
court observed that the FSSA Act 2006 was enacted where
section 7 specified the power of Food safety officers including
their power of storage seizure ,investigation permission and
procedure thereto. The learned Co-ordinate Bench took note of
several decisions of the Hon'ble Supreme Court whereby it was
repeatedly observed and held that the Special Act shall override
the provisions of procedure lay down in the CrPC and held that
though a specific, separate, distinct procedure has been laid
down in FSSA Act of 2006 to initiate /launch a proceeding
against the offender of laws relating to food safety that does not
ipso facto debar the police to register a case u/s 272 or 273 IPC.
12. But In the decision of Ram Nath (Supra),the Hon'ble Apex
Court discussed the specific provision enumerated in section (zz)
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of section 3 of the FSSA which defines unsafe foods,which reads
as ,
"(zz) "unsafe food" means an
article of food whose nature,
substance or quality is so affected
as to render it injurious to health:
--
(i) by the article itself, or its package
thereof, which is composed, whether
Wholly or in part, of poisonous
ordeleterious substances; or
(ii) by the article consisting, wholly or
in part, of any filthy, putrid, rotten,
decomposed or diseased animal
substance or vegetable substance; or
(iii) by virtue of its unhygienic
processing or the presence in that
article of any harmful substance;
or
(iv) by the substitution of any inferior
or cheaper substance whether wholly
or in part; or
(v) by addition of a substance
directly or as an ingredient which is
not permitted; or
(vi) by the abstraction, wholly or in
part, of any of its constituents; or
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(vii) by the article being so coloured,
flavoured or coated, powdered or
polished, as to damage or conceal the
article or to make it appear better or
of greater value than it really is; or
(viii) by the presence of any colouring
matter or preservatives other than
that specified in respect thereof; or
(ix) by the article having been
infected or infested with worms,
weevils, or insects; or
(x) by virtue of its being prepared,
packed or kept under insanitary
conditions; or
(xi) by virtue of its being mis-branded
or sub-standard or food containing
extraneous matter; or
(xii) by virtue of containing pesticides
and other contaminants in excess of
quantities specified by regulations.”.
13. It was observed that the concept of unsafe food is more
comprehensive than the concept of adulterated food .Unsafe food
means an article of food whose nature, substance or quality is so
affected as to render it injurious to health. In paragraph 18 of
the said decision it was held,
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18. Section 273 of the IPC applies when a person
sells or, offers or exposes for sale any article of
food or drink which has been rendered noxious or
has become unfit for food or drink. Section 273
incorporates requirements of knowledge or
reasonable belief that the food or drink sold or
offered for sale is noxious. Section 59 of the FSSA
does not require the presence of intention as
contemplated by Section 272 of the IPC. Under
Section 59 of the FSSA, a person commits an
offence who, whether by himself or by any person
on his behalf, manufactures for sale or stores or
sells or distributes any article of food for
human consumption which is unsafe. So,
the offence under Section 59 of the FSSA is
made out even if there is an absence of intention
as provided in Section 272 of the IPC. However,
knowledge is an essential ingredient in
sub-Section 1 of Section 48, and therefore, it will
be a part of Section 59 of the FSSA. The
maximum punishment for the offence under
Section 272 of the IPC is imprisonment for a
term which may extend to six months or
with a fine. The substantive sentence for the
offence punishable under Section 273 is
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the same, whereas, under Section 59, the
punishment is of simple imprisonment extending
from three months to a life sentence with a
fine of rupees three lakh up to 10 lakhs.
13. According taking note of section 89 of FSSA Act 2006
having the overriding effect distinguished the decision of Swami
Achyutanand Tirth and State of Maharastra where the question
of effect of section 97 of the FSSA never arose for consideration,
the concerned authority was given liberty to act in accordance
with FSSAI for offence punishable under Section 59 of FSSAI but
question of simultaneous prosecution under both the statute was
negated.
14. In the present case, similar situation has arisen when the
nature of allegation was ought to have been come under the
FSSAI Act and the procedure has been followed as per the Code
of Criminal Procedure as the collection procedure of sample
collection were not followed as per the provision lays down in
Section 38 to 47 of the FSSA Act 2006.That apart the samples
were not tested within stipulated time of 14 days as per the said
Act and after the aforesaid decision there remains no room left to
decide that section 89 of the FSSA Act have an overriding effect
being the special Statute and after enactment of the Act of 2006
the offences pertaining to food safety can only be initiated under
the said act . Therefore this proceeding under Section 272/273 of
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the IPC cannot continue .However so far the offence of Trade
Mark is concerned this court is not inclined to allow the prayer of
the petitioner .
Conclusion
15. Therefore, in view of this facts and circumstances, this
Court is of the view that this proceeding pending before the
learned Court is liable to be set aside so far the offence under
section 272 and 273 of the IPC are concerned however 2006.
Liberty is given to the authorities to initiate appropriate
proceedings in accordance with law if not already initiated.
16. The criminal revision stands allowed in part with the above
observation.
17. All parties shall act on the server copies of this order duly
downloaded from the official website of this Court.
(CHAITALI CHATTERJEE (DAS), J.)
