# Jagdish Prasad & Anr v. State of U.P. & Anr

- **Citation:** (2024) 7 ILRA 559
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-09
- **Case number:** Application U/S 482. No. 11772 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-prasad-anr-v-state-of-u-p-anr-52236
- **Pages:** 11

## Headnote

Criminal Law - Constitution of India, 1950
- Article 226 - Food Safety & Standards
Act, 2006 - Sections 3(1) (i), 3(1)(zk),
3(1)(zz), 19, 59, 92 & 92(1) (h) - Food
Safety
&
Standards
(Food
Products
Standards and Food Additives) Regulation,
2011 - Regulation - 2.2.1(7), 2.2.2(2),
2.2.2(6),
2.2.2(7),
2.2.2(8),
2.2.2(9),
2.2.2(10), 2.3.4, 2.3.55 - Cigarette and
other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade
and Commerce, Production, Supply and
Distribution) Act, 2003 - Sections 7, 10,
11, 14, 16 & 20 - Application U/s 482 -
challenging the summoning order as well as N/B
Warrant - Applicants have valid license for
manufacturing Sugandhit supari (betel nut)
under the Act, 2006 - A sample of supari
recovered from the applicants contained tobacco
as an additive for organo leptic purpose which is
violation of Act, 2006 - applicants taken plea
that, as the Supari is a tobacco product, its sale
and manufacturing will be covered by the
COTPA Act, 2003 therefore proceedings under
Act, 2006 is illegal - Court finds that, from the
conjoint reading of provisions of both Act, 2006
& Regulation, 2011, betel nut or Supari is a
primary food product, hence Supari would come
within the category of food and not the tobacco
- mixing of tobacco in any food item including
the betel nut or Supari is prohibited as per the
Regulation, 2011 and same would be punishable
under the Act, 2006 - invocation of the COTPA
Act, 2003 in the present case does not apply -
resulting present application fails and having no
merit - dismissed. (Para - 20, 23, 28, 30)

Application Dismissed. (E-11)

List of Cases cited:

## Text

7 All. Jagdish Prasad & Anr. Vs. State of U.P. & Anr.
559

28. Let a copy of this order be
communicated to the Additional Court
Varanasi.
----------
(2024) 7 ILRA 559
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482. No. 11772 of 2024

Jagdish Prasad & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Amit Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Constitution of India, 1950
- Article 226 - Food Safety & Standards
Act, 2006 - Sections 3(1) (i), 3(1)(zk),
3(1)(zz), 19, 59, 92 & 92(1) (h) - Food
Safety
&
Standards
(Food
Products
Standards and Food Additives) Regulation,
2011 - Regulation - 2.2.1(7), 2.2.2(2),
2.2.2(6),
2.2.2(7),
2.2.2(8),
2.2.2(9),
2.2.2(10), 2.3.4, 2.3.55 - Cigarette and
other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade
and Commerce, Production, Supply and
Distribution) Act, 2003 - Sections 7, 10,
11, 14, 16 & 20 - Application U/s 482 -
challenging the summoning order as well as N/B
Warrant - Applicants have valid license for
manufacturing Sugandhit supari (betel nut)
under the Act, 2006 - A sample of supari
recovered from the applicants contained tobacco
as an additive for organo leptic purpose which is
violation of Act, 2006 - applicants taken plea
that, as the Supari is a tobacco product, its sale
and manufacturing will be covered by the
COTPA Act, 2003 therefore proceedings under
Act, 2006 is illegal - Court finds that, from the
conjoint reading of provisions of both Act, 2006
& Regulation, 2011, betel nut or Supari is a
primary food product, hence Supari would come
within the category of food and not the tobacco
- mixing of tobacco in any food item including
the betel nut or Supari is prohibited as per the
Regulation, 2011 and same would be punishable
under the Act, 2006 - invocation of the COTPA
Act, 2003 in the present case does not apply -
resulting present application fails and having no
merit - dismissed. (Para - 20, 23, 28, 30)

Application Dismissed. (E-11)

List of Cases cited:

1. Application U/s 482 No. 9147/2023 (Manish
Gupta Vs State of UP & anr.),

2. St. of U.P. & anr. Vs Synthetics and
Chemicals Ltd. & anr.(1991 Vol. 4 SCC 139),

3. Roger Shashoua & ors.Vs Mukesh Sharma &
ors.(2017 vol. 14 SCC 722),

4. V. Kishan Rao Vs Nikhil Super Speciality
Hospital & anr.(2010 vol. 5 SCC 513).

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard learned counsel for the
applicants and Sri Rajeev Kr. Singh,
learned A.G.A. for the State.

2. The instant application under
Section 482 Cr.P.C. has been filed for
quashing the summoning order dated
10.09.2021 passed by Special Judge Food
Safety
&
Standards
Act/
Additional
Sessions Judge, Court No.9, Jhansi in
Sessions Case No.643 of 2021, under
Section 26(2)(v, i & ii)/58, 59(iii), 52(1)
Food Safety & Standards Act, 2006
(hereinafter referred to as 'Act, 2006'),
Police Station Orai, District Jalaun as well
as Non-bailable Warrant dated 27.10.2023
issued by Additional District Judge/FTCIInd, Jhansi.
560 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Facts giving rise to the present case
are that applicant No.2 is the proprietor of a
firm, named as M/s Balaji Traders Orai
while applicant No.1 is the employee of the
said firm of applicant No.2. The licence in
Form - C under the Act, 2006 was also
issued in the name of the firm of applicant
No.2. In the above licence, applicant No.2
was mentioned as a person in charge of the
operation of the firm and that licence is
valid till 16.7.2024. An inspection was
made by the Food Security Officer on
20.2.2020 in the manufacturing unit of
applicant No.2 where the applicant No.1,
who is an employee of the firm of applicant
No.2, was present. In the presence of
applicant No.1, 370 packets of sugandhit
supari (Puja Brand) were found in the
stock. Thereafter, four packets of the
sugandhit supari were purchased from
applicant No.1 by paying its price. On the
spot, the format of Form 5-ka was
prepared, out of which two samples were
given to applicant No.1 and one sample
was sent to the concerned laboratory for
examination. It is claimed by the applicants
that their firm is licence holder to
manufacture pan masala and supari under
the Act, 2006 which is valid up to
16.7.2024. On the basis of inspection of the
Food Inspector on 20.2.2020, the sample of
sugandhit supari (Puja Brand) was taken
from the premises of the applicants and
thereafter, on the basis of the report of the
food analyst, the impugned complaint was
filed. In the impugned complaint, it is
mentioned that the sample of sugandhit
supari contained tobacco. Therefore, the
same is of sub standard quality and not fit
for use. It was also mentioned in the report
of food analyst that the sample of packets,
containing supari, did not mention net
quantity/net weight, date of manufacturing,
batch number, manufacturer's complete
address, FSSAI licence number etc. In the
complaint, it is further mentioned that the
sample of sugandhit supari as well as its
packets, were prepared in violation of
Regulation 2.3.4 of the Food Safety and
Standards (Prohibition and Restriction of
Sale) Regulations, 2011 as well as
regulation Nos. 2.2.2(7), 2.2.2(9), 2.2.2(8),
2.2.2(10), 2.2.2(6), 2.2.1(7) and 2.2.2(2) of
the Food Safety and Standards (Packaging
and Labelling) Regulations, 2011. The
learned Magistrate, after receiving the
aforesaid
complaint,
summoned
the
applicants, which is under challenge.

4. The contention of learned counsel
for the applicants is that sugandhit supari is
a
tobacco
product,
therefore,
the
proceeding
under
the
Act,
2006
is
absolutely erroneous. In support of his
contention,
learned
counsel
for
the
applicants has relied upon the judgement of
coordinate Bench of this Court passed in
Application u/s 482 No. 9147 of 2023
(Manish Gupta vs. State of U.P. and
another) in which it is observed that the
sample of a packet of baba supari is
tobacco product and not a food item. It is
further submitted that the tobacco product
is not prohibited from selling, but it is
regulated by Cigarette and other Tobacco
Products (Prohibition of Advertisement and
Regulation of Trade and Commerce,
Production, Supply and Distribution) Act,
2003 (hereinafter referred to as "COTPA,
2003'). It is lastly submitted that even if it
is admitted that sugandhit supari is a food
item, even then, applicants have a valid
licence. Therefore, invoking the provision
of the Act, 2006 on the ground that at the
time of inspection, the applicants could not
show the licence is also incorrect, hence
erroneous.

5. Per contra, learned A.G.A. has
submitted that sugandhit supari is a food
7 All. Jagdish Prasad & Anr. Vs. State of U.P. & Anr.
561
item. Therefore, there is no illegality in the
impugned
proceeding.
It
is
further
submitted that at the time of inspection, the
applicants could not show the licence for
the production of food item, therefore, the
provision of the Act, 2006 was invoked.

6. Learned A.G.A. had filed counter
affidavit which was formal in nature,
therefore, learned counsel for the applicants
did not file rejoinder affidavit on the
ground that the same was formal in nature.

7. After hearing the rival submissions
of learned counsel for the parties, a sole
question arises whether the product in
question i.e. sugandhit supari (betel nut) is
a tobacco product or it comes within the
definition of food.

8. Learned counsel for the applicants
has submitted that as the supari is a tobacco
product, its sale and manufacturing will be
covered by the COTPA, 2003. Therefore,
proceeding against him, under the Act,
2006, is illegal. For the determination of
this question, it is necessary to discuss the
object of the Act, 2006 as well as COTPA,
2003.

9. The object of the Act, 2006, is to
lay down science-based standards for
articles of food and to regulate their
manufacture, storage, distribution, sale and
import, to ensure availability of the same
and
wholesome
food
for
human
consumption.

10. The object of COTPA, 2003 is to
provide effective measures for protecting
citizens from involuntary exposure to
cigarettes and other tobacco products
and
also
to
impose
progressive
restrictions
on
direct
and
indirect
advertisement,
promotion
and
sponsorship, concerning tobacco. To
achieve the aforesaid object, the COTPA,
2003 not only provides regulation of trade
and commerce, production, supply and
distribution of cigarettes and other tobacco
products
but
also
prohibits
its
advertisement and provides for displaying
the warning on the packets of cigarette and
other tobacco products.

11. From the objects of the above two
Acts, it is clear that COTPA, 2003 provides
regulation, production and supply of
cigarettes and other tobacco products,
whereas the Act, 2006 not only provides
manufacturing, storage and sale of food but
also provides a science-based standard for
articles of food which are safe for human
consumption. Therefore, if any article of
food used for human consumption, is found
sub standard, then the same is punishable.
However, under the COTPA, 2003 any
substandard tobacco product, even if used
for human consumption, is not punishable
under the COTPA, 2003. The COTPA,
2003 apart from regulating the production
and providing specified warning on the
package of cigarettes and other tobacco
products,
also
provides
a
maximum
permissible limit of nicotine and tar in
tobacco products.

12. Section 14 of the COTPA, 2003
provides
confiscation
of
package
of
cigarettes and other tobacco products, if
same violates any of the provisions of the
COTPA, 2003. Section 20 of the COTPA,
2023 also provides punishment on failure
to give a specified warning of nicotine and
tar contents. Therefore, if cigarette or any
other
tobacco
product
contains
the
ingredients of nicotine and tar beyond the
prescribed limit, then same is punishable
under Section 20 of COTPA, 2003.
However, there is no provision in the
562 INDIAN LAW REPORTS ALLAHABAD SERIES
COTPA, 2003, providing punishment for
having ingredients in tobacco products
other than nicotine and tar, even though
same may be injurious to health of any
person. Sections 7, 10, 11, 14, 20 of the
COTPA, 2003 are being quoted as under:-

"7. Restrictions on trade and
commerce in, and production, supply and
distribution
of
cigarettes
and
other
tobacco products.-

(1) No person shall, directly or
indirectly, produce, supply or distribute
cigarettes or any other tobacco products
unless every package of cigarettes or any
other tobacco products produced, supplied
or distributed by him bears thereon, or on
its label 1[such specified warning including
a pictorial warning as may be prescribed.]

(2) No person shall carry on
trade or commerce in cigarettes or any
other tobacco products unless every
package of cigarettes or any other tobacco
products sold, supplied or distributed by
him bears thereon, or on its label, the
specified warning.

(3) No person shall import
cigarettes or any other tobacco products
for distribution or supply for a valuable
consideration or for sale in India unless
every package of cigarettes or any other
tobacco products so imported by him bears
thereon, or on its label, the specified
warning.

(4) The specified warning shall
appear on not less than one of the largest
panels of the package in which cigarettes
or any other tobacco products have been
packed for distribution, sale or supply for a
valuable consideration.

(5) No person shall, directly or
indirectly, produce, supply or distribute
cigarettes or any other tobacco products
unless every package of cigarettes or any
other tobacco products produced, supplied
or distributed by him indicates thereon, or
on its label, the nicotine and tar contents
on each cigarette or as the case may be on
other tobacco products along with the
maximum permissible limits thereof:

Provided that the nicotine and tar
contents shall not exceed the maximum
permissible quantity thereof as may be
prescribed by rules made under this Act.

10. Size of letters and figures.-
No specified warning or indication of
nicotine and tar contents in cigarettes and
any other tobacco products shall be
deemed to be in accordance with the
provisions of this Act if the height of each
letter or figure, or both the used on such
warning and indication is less than the
height as may be prescribed by rules made
under this Act. 11. Testing laboratory for
nicotine and tar contents.-For purposes of
testing the nicotine and tar contents in
cigarettes and any other tobacco products
the
Central
Government
shall
by
notification in the Official Gazette grant
recognition to such testing laboratory as
that Government may deem necessary.

11.
Testing
laboratory
for
nicotine and tar contents.- For purposes
of testing the nicotine and tar contents in
cigarettes and any other tobacco products
the
Central
Government
shall
by
notification in the Official Gazette grant
recognition to such testing laboratory as
that Government may deem necessary.

14. Confiscation of package.-
Any package of cigarettes or any other
tobacco products or any advertisement
material of cigarettes or any other tobacco
products, in respect of which any provision
of this Act has been or is being
contravened,
shall
be
liable
to
be
confiscated: Provided that, where it is
established to the satisfaction of the court
adjudging the confiscation that the person
in whose possession, power or control any
7 All. Jagdish Prasad & Anr. Vs. State of U.P. & Anr.
563
such package of cigarettes orany other
tobacco
products
is
found
is
not
responsible for the contravention of the
provisions of this Act, the Court may, 10
instead of making an order for the
confiscation of such package, make such
other order authorised by this Act against
the person guilty of the breach of the
provisions of this Act as it may think fit.

20. Punishment for failure to
give specified warning and nicotine and
tar contents.-

(1) Any person who produces or
manufactures
cigarettes
or
tobacco
products, which do not contain, either on
the package or on their label, the specified
warning and the nicotine and tar contents,
shall in the case of first conviction be
punishable with imprisonment for a term
which may extend to two years, or with fine
which may extend to five thousand rupees,
or with both, and for the second or
subsequent conviction, with imprisonment
for a term which may extend to five years
and with fine which may extend to ten
thousand rupees.

(2) Any person who sells or
distributes cigarettes or tobacco products
which do not contain either on the package
or on their label, the specified warning and
the nicotine and tar contents shall in the
case of first conviction be punishable with
imprisonment for a term, which may extend
to one year, or with fine which may extend
to one thousand rupees, or with both, and,
for the second or subsequent conviction,
with imprisonment for a term which may
extend to two years and with fine which
may extend to three thousand rupees."

13. Section 16 of the COTPA, 2003
further provides that confiscation of any
tobacco product will not prevent the
infliction of any punishment under any
other law, which means if the production or
sale of any substandard tobacco product is
also prohibited in any other law, then
prosecution under that law would not be
barred despite the confiscation of tobacco
product for violation of the COTPA, 2003.
Section 16 of the COTPA, 2003 is quoted
is under:-

"16.
Confiscation
not
to
interfere with other punishments.- No
confiscation made, costs ordered tobe paid
under this Act shall prevent the infliction of
any punishment to which the person
affected thereby is liable under the
provisions of this Act or under any other
law."

14. From the perusal of Section 16, it
is also clear that even though any product is
a tobacco product but if it contains any
ingredient other than nicotine and tar,
which is injurious or dangerous for human
consumption, then even if the same is not
punishable under the COTPA, 2003, but
the same could be punishable in any other
law including the Act, 2006. In the present
case, the question arises of whether the
supari or betel nut is a tobacco product
under the COTPA, 2003, or food under the
Act, 2006.

15. Betel nut is a fruit of the areca
palm (Areca Catechu) that grows in much
of the tropical Pacific, South Asia, Southeast Asia, and parts of East Africa. It is not
to be confused with betel leaves that are
often used to wrap it. The practice of betel
nut chewing, often together with other
herbs as a stimulant drug, dates back
thousands of years, and continues to the
present day in many other Asian countries.
When chewed with additional tobacco in its
preparation, there is even higher risk
especially for oral and oropharyngeal
cancers. In India, betel nut is used in pan
564 INDIAN LAW REPORTS ALLAHABAD SERIES
along with other ingredients like lime and
kattha and there is a large scale use of betel
nut for human consumption in India, as the
betel nut is a primary product of the tree,
namely, Areca palm.

16. The definition of 'food' has been
given in Section 3(1)(j) of the Act, 2006
which provides any substance, whether
processed or unprocessed, entitled for the
human consumption and which includes
primary food to the extent defined in
Section 3(1)(zk). The definition of 'primary
food' has also been given in Section
3(1)(zk) which provides any article of food
which is produced from agriculture or
horticulture,
resulting
from
growing,
raising, cultivation, picking and harvesting.
For reference Sections 3(1)(j) and 3(1)(zk)
of the Act, 2006 are being quoted as
under:-

"3(1)(j)
"Food"
means
any
substance, whether processed, partially
processed
or
unprocessed,
which
is
intended for human consumption and
includes primary food to the extent defined
in clause (zk), genetically modified or
engineered food or food containing such
ingredients, infant food, packaged drinking
water, alcoholic drink, chewing gum, and
any substance, including water used into
the
food
during
its
manufacture,
preparation or treatment but does not
include any animal feed, live animals
unless they are prepared or processed for
placing
on
the
market
for
human
consumption, plants, prior to harvesting,
drugs and medicinal products, cosmetics,
narcotic or psychotropic substances:

Provided
that
the
Central
Government may declare, by notification in
the Official Gazette, any other article as
food for the purposes of this Act having
regards to its use, nature, substance or
quality;

(zk) "primary food" means an
article of food, being a produce of
agriculture or horticulture or animal
husbandry and dairying or aquaculture in
its natural form, resulting from the
growing,
raising,
cultivation,
picking,
harvesting, collection or catching in the
hands of a person other than a farmer or
fisherman."

17. Section 92 of the Act, 2006 gives
power to the Food Safety and Standards
Authority to make regulations with prior
approval of the Central Government,
providing standards and guidelines in
relation to the articles of food meant for
human consumption as well as providing
limits of additive under Section 19 of the
Act, 2006. In pursuance of the power under
Section 92 of the Act, 2006, the Food
Safety and Standards Authority of India,
with
prior
approval
of
the
Central
Government, made the regulation named as
the Food Safety and Standards (Food
Products Standards and Food Additives)
Regulations, 2011. This regulation has
provided standards for food products.
Regulation 2.3.55 provides standard of
areca nuts or betel nuts (supari). This
regulation also provides the food additives
permissible in betel nut or supari as per
Appendix-A. In Appendix A any seed or
nut is not permitted to have any food
additive. Regulation 2.3.55 is quoted as
under:-

"2.3.55
ARECANUTS
OR
BETELNUTS OR SUPARI

1. Description: (a) "Arecanuts"
or "Betelnuts" or "Supari" means nuts
obtained from Areca Palm (Areca catechu
L.).
7 All. Jagdish Prasad & Anr. Vs. State of U.P. & Anr.
565

(b) The product shall be dry, well
matured, sound, clean, whole or cut, fully
dehusked, uniform in colour, i.e., bright
shining to dull red colour.

(c) It shall be free from synthetic
colouring matter and shall be free from
insect infestation, visible moulds, fissures
and shrinkage and shall not be hollow.

(d) The product shall not have
any off flavour, odour or other undesirable
characteristics and shall also conform to
the following standards, namely:

S.No.
Characteristics
Requirements
1
Moisture
%
(Maximum)
7
2
Damaged Nuts %
(by
weight)
(Maximum)

12
a)
For whole nuts or
supari (Damaged
nuts
include
blemish
or
cracked
nuts,
broken nuts, nuts
not fully dehusked
and those the pith
of which is black)
b)
For cut nuts or
supari (Damaged
nuts
include
blemish/cracked
nuts, nuts not fully
dehusked
and
those the pith of
which is black)
3
Damaged
by
moulds
and
insects
%
(by
weight)
(Maximum)
3

2. Food additives: The product
may contain food additives permitted in
Appendix A.

3. Contaminants, toxins and
residues: The product covered in this
standard shall comply with the Food Safety
and Standards (Contaminants, toxins and
Residues) Regulations, 2011.

4. Food hygiene:

(a) The product shall be prepared
and handled in accordance with the
guidance provided in the Schedule 4 of the
Food Safety and Standards (Licensing and
Registration
of
Food
Businesses)
Regulations, 2011 and any other such
guidance provided from time to time under
the provisions of the Food Safety and
Standards Act, 2006 (34 of 2006).

(b) The product shall conform to
the microbiological requirements given in
Appendix B.

5. Packaging and labelling: The
product covered by this standard shall be
labelled in accordance with the Food
Safety and Standards (Packaging and
Labelling) Regulations, 2011.

6. Method of analysis: The
product shall be analysed as provided in
the relevant Food Safety and Standards
Authority of India Manual of Method of
Analysis of Food."

18. As per Section 3(p) of the
COTPA, 2003 tobacco products means
products specified in the schedule whereas
in the schedule of the COTPA, 2003 the
following articles are mentioned as tobacco
products:-

"THE SCHEDULE
[See section 3(p)]

1. Cigarettes

2. Cigars

3. Cheroots

4. Beedis

5.
Cigarette
tobacco,
pipe
tobacco and hookah tobacco

6. Chewing tobacco
566 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Snuff

8. Pan masala or any chewing
material having tobacco as one of its
ingredients (by whatever name called).

9. Gutka

10. Tooth powder containing
tobacco."

19. From the perusal of the tobacco
product, mentioned in item No.8, it is clear
that pan masala or any chewing material
having tobacco as one of its ingredients, is
tobacco product. However, betel nut or
supari is not the chewing material having
tobacco as one of its ingredients.

20. Therefore, from the conjoint
reading of Section 3(1)(j) and 3(1)(zk) of
the Act, 2006 as well as Regulation 2.3.55
of the Food Safety and Standards (Food
Products Standards and Food Additives)
Regulations, 2011, it is clear that betel
nut or supari is a primary food product,
hence would come within the category of
food and not the tobacco product.

21. Now, a question arises as to
whether the use of tobacco in betel nuts
makes them unsafe and prohibited under the
Act, 2006. Section 92(1)(h) of the Act, 2006
authorises the Food Safety and Standards
Authority of India, with prior approval of the
Central Government, to make regulations
regarding food additives in food products
also. In the exercise of power under Section
92 of the Act, 2006 the Food Safety and
Standards Authority of India framed Food
Safety and Standards (Prohibition and
Restriction of Sale) Regulations, 2011,
Regulation 2.3.4 whereof is quoted as under:-

"2.3.4: Product not to contain
any substance which may be injurious to
health: Tobacco and nicotine shall not be
used as ingredients in any food products."

22. Section 3(1)(zz) of the Act, 2006
provides the definition of 'unsafe food',
which includes the addition of a substance
directly or as an ingredient, which is not
permitted. As the Regulation 2.3.4 of the
Food Safety and Standards (Prohibition and
Restriction of Sale) Regulations, 2011
provides prohibition of the addition of
tobacco as an ingredient in food products,
therefore, adding tobacco to any food
product will be deemed to be unsafe food
as per Section 3(1)(zz)(v) of the Act, 2006.
Section 3(1)(zz)(v) of the Act, 2006 is
being quoted as under:-

"3(1)(zz) "unsafe food" means
an article of food whose nature, substance
or quality is so affected as to render it
injurious to health:-

(v) by addition of a substance
directly or as an ingredient which is not
permitted; "

23. Therefore, from above analysis,
it is clear that mixing of tobacco in any
food item including the betel nut or
supari is prohibited as per Regulation
2.3.4 of the Food Safety and Standards
(Prohibition and Restriction of Sale)
Regulations, 2011 and the same would be
punishable under Section 59 of the Act,
2006.

24. In the judgment of the co-ordinate
Bench of this Court in Manish Gupta Vs.
State of U.P. (Supra), relied upon by the
learned counsel of the applicants, the coordinate Bench, while deciding that case,
overlooked Sections 3(1)(zk) and 3(1)(zz)
of the Act, 2006, Regulation 2.3.55 of the
Food Safety and Standards (Food Products
Standards
and
Food
Additives)
Regulations, 2011, Regulation 2.3.4 of the
the Food Safety and Standards (Prohibition
and Restriction of Sale) Regulations, 2011
7 All. Jagdish Prasad & Anr. Vs. State of U.P. & Anr.
567
and also Section 16 of the COTPA, 2003.
Therefore, being contrary to the statutory
provisions, the above judgment is per
incuriam, hence, can not be relied upon.

25. In the case of State of U.P. and
another vs. Synthetics and Chemicals Ltd.
And another; (1991) 4 SCC 139, the
Hon'ble Apex Court considered the issue
of judgement passed in per incuriam.
Paragraph Nos. 40 and 41 of Synthetics
and Chemicals Ltd. (supra) is quoted as
under:-

"40. 'Incuria' literally means
'carelessness'. In practice per incuriam
appears to mean per ignoratium. English
courts have developed this principle in
relaxation of the rule of stare decisis. The
'quotable in law' is avoided and ignored if
it is rendered, 'in ignoratium of a statute or
other binding authority'. (Young v. Bristol
Aeroplane Co. Ltd. [(1944) 1 KB 718 :
(1944) 2 All ER 293] ). Same has been
accepted, approved and adopted by this
Court while interpreting Article 141 of the
Constitution which embodies the doctrine
of precedents as a matter of law. In Jaisri
Sahu v. Rajdewan Dubey [(1962) 2 SCR
558 : AIR 1962 SC 83] this Court while
pointing out the procedure to be followed
when conflicting decisions are placed
before a bench extracted a passage from
Halsbury's Laws of England incorporating
one of the exceptions when the decision of
an appellate court is not binding.

41. Does this principle extend
and apply to a conclusion of law, which
was neither raised nor preceded by any
consideration. In other words can such
conclusions be considered as declaration of
law? Here again the English courts and
jurists have carved out an exception to the
rule of precedents. It has been explained as
rule of sub-silentio. "A decision passes
sub-silentio, in the technical sense that has
come to be attached to that phrase, when
the particular point of law involved in the
decision is not perceived by the court or
present
to
its
mind."
(Salmond
on
Jurisprudence 12th Edn., p. 153). In
Lancaster Motor Company (London) Ltd. v.
Bremith Ltd. [(1941) 1 KB 675, 677 :
(1941) 2 All ER 11] the Court did not feel
bound by earlier decision as it was
rendered 'without any argument, without
reference to the crucial words of the rule
and without any citation of the authority'.
It was approved by this Court in Municipal
Corporation of Delhi v. Gurnam Kaur.
[(1989) 1 SCC 101] The bench held that,
'precedents
sub-silentio
and
without
argument are of no moment'. The courts
thus have taken recourse to this principle
for relieving from injustice perpetrated by
unjust precedents. A decision which is not
express and is not founded on reasons nor
it proceeds on consideration of issue
cannot be deemed to be a law declared to
have a binding effect as is contemplated by
Article 141. Uniformity and consistency are
core of judicial discipline. But that which
escapes in the judgment without any
occasion is not ratio decidendi. In B.
Shama
Rao
v.
Union
Territory
of
Pondicherry [AIR 1967 SC 1480 : (1967)
2 SCR 650 : 20 STC 215] it was
observed, 'it is trite to say that a decision
is binding not because of its conclusions
but in regard to its ratio and the
principles, laid down therein'. Any
declaration or conclusion arrived without
application of mind or preceded without
any reason cannot be deemed to be
declaration of law or authority of a
general nature binding as a precedent.
Restraint in dissenting or overruling is
for sake of stability and uniformity but
rigidity beyond reasonable limits is
inimical to the growth of law."
568 INDIAN LAW REPORTS ALLAHABAD SERIES

26. Similarly, the Apex Court again
considered the issue of judgement in per
incuriam in the case of Roger Shashoua
and others vs. Mukesh Sharma and
others; (2017) 14 SCC 722 and observed
that a decision can be per incuriam if any
provision in statute, rule or regulation was
not brought to the notice of the Court.
Paragraph No. 42 of the Roger Shashoua
(surpa) is quoted as under:-

"42. In Sundeep Kumar Bafna
[Sundeep Kumar Bafna v. State of
Maharashtra, (2014) 16 SCC 623 : (2015)
3 SCC (Cri) 558] , the Court referred to the
Constitution Bench decision in Union of
India v. Raghubir Singh [Union of India v.
Raghubir Singh, (1989) 2 SCC 754] and
Chandra
Prakash
v.
State
of
U.P.
[Chandra Prakash v. State of U.P., (2002)
4 SCC 234 : 2002 SCC (L&S) 496] and
thereafter
expressed
its
view
thus:
(Sundeep Kumar case [Sundeep Kumar
Bafna v. State of Maharashtra, (2014) 16
SCC 623 : (2015) 3 SCC (Cri) 558] , SCC
p. 642, para 19)

"19. It cannot be overemphasised
that
the
discipline
demanded
by
a
precedent
or
the
disqualification
or
diminution of a decision on the application
of the per incuriam rule is of great
importance, since without it, certainty of
law, consistency of rulings and comity of
courts would become a costly casualty. A
decision or judgment can be per incuriam
any provision in a statute, rule or
regulation, which was not brought to the
notice of the court. A decision or judgment
can also be per incuriam if it is not possible
to reconcile its ratio with that of a
previously pronounced judgment of a coequal or larger Bench; or if the decision of
a High Court is not in consonance with the
views of this Court. It must immediately be
clarified that the per incuriam rule is
strictly and correctly applicable to the ratio
decidendi and not to obiter dicta. It is often
encountered in High Courts that two or
more mutually irreconcilable decisions of
the Supreme Court are cited at the Bar. We
think that the inviolable recourse is to
apply the earliest view as the succeeding
ones would fall in the category of per
incuriam."
(emphasis in original)"

27. Hon'ble Apex Court again in V.
Kishan Rao vs. Nikhil Super Speciality
Hospital and another; (2010) 5 SCC 513,
observed that a decision ignoring the
statutory
provision
is
per
incuriam,
therefore, will not have binding effect.
Paragraph No. 54 of the V. Kishan Rao
(supra) is quoted as under:-

"54.
When
a
judgment
is
rendered by ignoring the provisions of the
governing statute and earlier larger Bench
decision on the point such decisions are
rendered per incuriam. This concept of per
incuriam has been explained in many
decisions
of
this
Court.
Sabyasachi
Mukharji, J. (as his Lordship then was)
speaking for the majority in A.R. Antulay v.
R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC
(Cri) 372] explained the concept in the
following words : (SCC p. 652, para 42)

"42. ... 'Per incuriam' are those
decisions
given
in
ignorance
or
forgetfulness of some inconsistent statutory
provision or of some authority binding on
the court concerned, so that in such cases
some part of the decision or some step in
the reasoning on which it is based, is
found, on that account to be demonstrably
wrong."

Subsequently
also
in
the
Constitution Bench judgment of this Court
in
Punjab
Land
Development
and
Reclamation Corpn. Ltd. v. Labour Court
7 All. Akanksha Katiyar & Ors. Vs. State of U.P. & Ors.
569
[(1990) 3 SCC 682 : 1991 SCC (L&S) 71] ,
similar views were expressed in para 40 at
p. 705 of the report."

28. In the present case, the license to
the applicants of the firm was given under
the Act, 2006 with the condition that they
will conform to the Act, 2006 while
manufacturing or producing the sugandhit
supari, therefore, contention of counsel for
the applicants that the provision of the Act,
2006
will
not
be
applicable
while
manufacturing or producing sugandhit
supari, is misconceived.

29. In the present case, a sample of
supari, recovered from the manufacturing
unit of the applicants, had tobacco as an
additive for organo leptic purpose, which is
in violation of the Act, 2006 as the betel
nut or supari is a primary food as per
Section
3(1)(zk)
of
the
Act,
2006,
therefore, same is offence under the Act
2006 and the proceeding under the Act,
2006 against the applicants is absolutely
correct, and invocation of the COTPA,
2003 in the present case does not apply.

30. So far as the contention of learned
counsel
for
the
applicants
that
the
applicants
have
valid
licence
for
manufacturing supari (betel nut), even then,
provisions of the Act, 2006 have been
invoked against them, treating them as
manufacturers of the product of supari
without licence is concerned, same can be
raised at the time of framing of charges.

31. In view of the above analysis, this
Court finds that there is no illegality in the
impugned proceeding. Therefore, present
application fails, having no merit.

32. Accordingly, the application is
dismissed.
----------
(2024) 7 ILRA 569
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.07.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482. No. 15986 of 2024

Akanksha Katiyar & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri
Abhay
Kumar,
Sri
Kumar
Ankit
Srivastava

Counsel for the Opposite Parties:
G.A., Sri Qazi Vakil Ahmad

Criminal Law - Criminal Procedure Code,
1973 - Section - 482, - Indian Penal Code,
1860 - Section 498-A, 342, 457, 448, 503,
504 & 506 - Hindu Marriage Act, 1955 -
Section - 13 - The Dowry Prohibition Act,
1961 - Section - 3/4: - Application U/s 482 -
against criminal proceedings which are result of
a counter blast - on the basis of alleged
occurrence toll place on date of incident it was
the applicant -1 who lodged prompt FIR
wherein after investigation charge sheet has
been filed - whereas opposite party no. 4 has
filed a belated FIR wherein major allegations
with regards to section 457, 448 of IPC were
not found and the chargesheet was filed only
u/section 504, 506 IPC - court finds that, it is
not in dispute that relation between parties are
not cordial and criminal cases are pending
between parties as well as the husband of
applicant no. 1 has also filed an application
u/section 13 of the H.M. Act, - in order to make
out a case u/s section 504 and 506 OPC the
ingredients of criminal intimidation has to be
complied with i.e. threat caused by the applicant
must be with intention to cause alarm to that
person, or to cause that person to do any act
which he is not legally bound to do, or to omit