# M/s Kewal Dairy v. State of U.P. & Anr

- **Citation:** (2024) 11 ILRA 408
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-12
- **Case number:** Application U/S 482. No. 25510 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kewal-dairy-v-state-of-u-p-anr-54657
- **Pages:** 6

## Headnote

Criminal law- Criminal Procedure Code,
1973 -Section 482- Food Safety and
Standards Act, 2006 - Sections 51, 59(i),
77 & 89 - Limitation for prosecution -
Cognizance beyond one year - Effect of
approval
under
Section
77
-
Commissioner of Food Safety may extend
limitation up to three years by recording
reasons - Overriding effect of the Act
under Section 89 - Section 468 CrPC not
applicable - Cognizance rightly taken -
application dismissed. (Paras 9 to 12, 15,
and 16)

HELD:
Ratio of St. of Rajasthan Vs Sanjay Kumar
(supra) is also applicable in the Act, 2006
because, at the time of collection of a sample of
food, no offence can be said to be committed as
there is no prohibition to sell food which is not
prohibited. It is only when Food Analyst Report
received about unfit/unsafe food, offence can be
said to be committed. In case of sell of unsafe
or sub-standard milk, the date of commission of
offence would be the date when the report of
Food Analyst is received about its quality. (Para
9)

Thus applying the above Principle of Law in the
present case, date of commission of offence
would be 10.12.2017. Thereafter application for
seeking approval was submitted by the Food
Safety Officer on 14.05.2018 and approval
under Section 77 of the Act, 2006 was granted
on 20.06.2019. Therefore period between
14.05.2018 to 20.06.2019 would be excluded
because of Section 470(3) Cr.P.C., as Section
470(3) Cr.P.C. provides exclusion of time taken
by Sanctioning Authority in computation of
limitation.
Therefore
complaint
filed
on
04.07.2019 was well within one year. (Para 10)

As per the law laid down in Sarah Mathew Vs
Institute of Cardio Vascular Diseases & ors.;
(2014) 2 SCC 62, the date of cognizance would
be the date when the complaint is filed. (Para
11)

So far as the contention of counsel for the
applicant that the offence is punishable for one
year and because of Section 468 Cr.P.C., the
cognizance cannot be taken after one year is
concerned, is incorrect because as per Section
77 of the Act, 2006 prosecution even after one
year can be approved by the Commissioner,
Food Safety and the same has already been
approved by the Commissioner by order dated
11 All. M/s Kewal Dairy Vs. State of U.P. & Anr.
409
20.06.2019. The specific provision of extension
of limitation provided under Section 77 of the
Act, 2006 will prevail over Section 468 Cr.P.C.
because of Section 89 of the Act, 2006. (Para
15)

From the above observation in the judgement of
Ram Nath's case (supra), it is clear that the
overriding effect of the FSS Act is not confined
to only food-related laws but also other Laws
including Cr.P.C. (Para 17)

Application dismissed. (E-14)

List of Cases cited:

## Text

408 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 25.8.2023 passed by learned
Additional Session Judge, Court No. 29,
Agra passed in Criminal Revision No. 179
of 2023 (Ram Ratan vs. State of U.P. and
another) is hereby set-aside with the
direction to the Court concerned to
handover the custody of the vehicle
immediately to the petitioner Gunjan
(minor) through her legal guardian Kishan
Pal Singh and settle the dispute at the
earliest.

19. It is also made clear that the matter
has not being remitted back to the Court
concerned as it shall unnecessarily prolong
the litigation and the minor petitioner Km.
Gunjan shall be unnecessarily harassed.

20.
With
the
aforesaid
directions/observations, the present Writ
Petition is disposed of.
----------
(2024) 11 ILRA 408
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.11.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482. No. 25510 of 2024

M/s Kewal Dairy ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Bipin Kumar, Mohd, Naushad Siddiqui

Counsel for the Opposite Parties:
G.A.

Criminal law- Criminal Procedure Code,
1973 -Section 482- Food Safety and
Standards Act, 2006 - Sections 51, 59(i),
77 & 89 - Limitation for prosecution -
Cognizance beyond one year - Effect of
approval
under
Section
77
-
Commissioner of Food Safety may extend
limitation up to three years by recording
reasons - Overriding effect of the Act
under Section 89 - Section 468 CrPC not
applicable - Cognizance rightly taken -
application dismissed. (Paras 9 to 12, 15,
and 16)

HELD:
Ratio of St. of Rajasthan Vs Sanjay Kumar
(supra) is also applicable in the Act, 2006
because, at the time of collection of a sample of
food, no offence can be said to be committed as
there is no prohibition to sell food which is not
prohibited. It is only when Food Analyst Report
received about unfit/unsafe food, offence can be
said to be committed. In case of sell of unsafe
or sub-standard milk, the date of commission of
offence would be the date when the report of
Food Analyst is received about its quality. (Para
9)

Thus applying the above Principle of Law in the
present case, date of commission of offence
would be 10.12.2017. Thereafter application for
seeking approval was submitted by the Food
Safety Officer on 14.05.2018 and approval
under Section 77 of the Act, 2006 was granted
on 20.06.2019. Therefore period between
14.05.2018 to 20.06.2019 would be excluded
because of Section 470(3) Cr.P.C., as Section
470(3) Cr.P.C. provides exclusion of time taken
by Sanctioning Authority in computation of
limitation.
Therefore
complaint
filed
on
04.07.2019 was well within one year. (Para 10)

As per the law laid down in Sarah Mathew Vs
Institute of Cardio Vascular Diseases & ors.;
(2014) 2 SCC 62, the date of cognizance would
be the date when the complaint is filed. (Para
11)

So far as the contention of counsel for the
applicant that the offence is punishable for one
year and because of Section 468 Cr.P.C., the
cognizance cannot be taken after one year is
concerned, is incorrect because as per Section
77 of the Act, 2006 prosecution even after one
year can be approved by the Commissioner,
Food Safety and the same has already been
approved by the Commissioner by order dated
11 All. M/s Kewal Dairy Vs. State of U.P. & Anr.
409
20.06.2019. The specific provision of extension
of limitation provided under Section 77 of the
Act, 2006 will prevail over Section 468 Cr.P.C.
because of Section 89 of the Act, 2006. (Para
15)

From the above observation in the judgement of
Ram Nath's case (supra), it is clear that the
overriding effect of the FSS Act is not confined
to only food-related laws but also other Laws
including Cr.P.C. (Para 17)

Application dismissed. (E-14)

List of Cases cited:

1. Ashok Kumar Pal Vs St. of U.P. and other
(Application U/S 482 No.1700 of 2024)

2. St. of Rajasthan Vs Sanjay Kumar & ors.;
(1998) 5 SCC 82

3. Sarah Mathew Vs Institute of Cardio Vascular
Diseases & ors.; (2014) 2 SCC 62

4. Ram Nath Vs St. of U.P. & ors.; (2024) 3 SCC
502

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

1. Heard Mohd. Naushad Siddiqui,
learned counsel for the applicant, Sri Pankaj
Saxena, learned A.G.A for the State and
perused the record.

2. The instant application under Section
482 Cr.P.C. has been filed for quashing the
order
dated
27.06.2024
passed
by
Metropolitan Magistrate-1st, Kanpur Nagar
as well as entire proceeding of Complaint
Case No.18674 of 2019, under Section 51
and 59(i) of Food Safety and Standard Act,
2006, Police Station- Nazirabad, District
Kanpur Nagar pending in the court of
Metropolitan Magistrate-1st, Kanpur Nagar.

3. Facts giving rise to the present case
are that the sample of milk was collected
on 24.11.2017 by the Food Safety Officer
from the premises of applicant thereafter
the sample of milk was sent to the Food
Analyst,
Regional
Food
Laboratory
Medical College Campus, Meerut for
analysis. Thereafter a report from a food
analyst
was
received
on
10.12.2017
showing milk was of sub-standard.
Subsequently, notice was issued to the
applicant, who filed the appeal before the
designated officer against the report of the
food analyst which was allowed and the
sample was again sent for fresh analysis.
Thereafter fresh report was received from
the food analyst on 25.04.2018 again
showing that the milk was sub-standard and
also unsafe. Thereafter Food Safety Officer
sent an application to the Commissioner,
Food Safety through designated officer on
14.05.2018 to get approval for prosecution
under Section 77 of Act, 2006. The
Commissioner, Food Safety vide order
dated 20.06.2019 granted approval for the
prosecution of applicant despite expiry of
period of one year from the date of
commission
of
offence,
thereafter
complaint was filed on 04.07.2019.

4. Contention of learned counsel for
the
applicant
is
that
the
impugned
proceeding is barred by limitation and the
court below while rejecting his application
failed to consider this aspect. It is further
submitted that in the present case, the
sample was collected on 24.11.2017 but the
complaint was filed on 04.07.2019 which is
after more than one year. Therefore, in
view of Section 468 Cr.P.C. the court is
barred
from
taking
cognizance.
Alternatively, counsel for the applicant also
submitted that even it is accepted that in
view of Section 77 of Food Safety and
Standard Act, 2006 (hereinafter referred to
as the 'Act, 2006'), the Commissioner of
Food Safety can extend the period for
410 INDIAN LAW REPORTS ALLAHABAD SERIES
taking cognizance from one year to three
years from the date of commission of an
offence but the reason must be recorded but
the Commissioner while extending the
period of limitation under Section 77 of the
Act, 2006 has not recorded reason. Learned
counsel for the applicant lastly submitted
that the sample was collected from the
dairy of the applicant which was substandard, therefore, proceeding can be
initiated only under Section 51 and not
under Section 59(i) of the Act, 2006. It is
submitted that being the time barred, the
impugned complaint as well as impugned
order deserves to be quashed.

5. In support of his contention, learned
counsel for the applicant has also relied
upon the judgement of this Court in the
case of Ashok Kumar Pal vs State of U.P.
and other (Application U/S 482 No.1700
of 2024) wherein this Court observed that
cognizance can be taken by the court under
the Act, 2006, after approval under Section
77 of the Act, 2006, up to the period of
three years from the date of taking the
sample.

6. Per contra, learned AGA has
submitted that after the enforcement of
Food Safety and Standard Act, 2006, a
special
provision
regarding
taking
cognizance under the Act, 2006 has been
provided under Section 77 of the Act, 2006
which provides that the court will not take
cognizance of the offence under this Act
after the expiry of the period of one year
from the date of commission of offence but
for reasons to be recorded by the
Commissioner of Food Safety the aforesaid
period can be extended up to three years. In
such cases when the specific provision is
there, then Section 468 Cr.P.C. will not be
applicable because Section 89 of Act, 2006
specifically provides that this Act will
override all other Acts.

7. After considering the submissions
of learned counsel for the parties and on a
perusal of the record, the question arises,
what is the date of commission of offence
to decide whether cognizance on complaint
is barred by limitation. In support of his
contention counsel for the applicant relied
upon the earlier decision of this Court in
the case of Ashok Kumar Pal (supra) in
which it is held that date of commission of
offence in the Act, 2006 would be the date
on which the sample of food was collected,
though that observation was not part of the
ratio of that judgement but simply an
observation. Para 15 of the judgement of
Ashok Kumar Pal's case (supra) is
quoted as under;

"15. From the perusal of Section77 of the Act, 2006, it is explicit that the
court can take cognizance up to three years
from the date of commission of the offence.
A commission of an offence under the Act,
2006 can be considered on the date when
the sample was collected. In the present
case,
the
sample
was
collected
on
02.11.2010
and
the
proceeding
was
initiated under the Act, 1954, despite
repealing
the
same.
Therefore,
that
proceeding was not saved u/s 97 of the Act,
2006. Therefore, even if the fresh complaint
is filed under the Act, 2006 then the
concerned court cannot take cognizance in
view of the bar of Section-77 of the Act,
2006. Therefore, the contention of learned
counsel for the applicant is correct that
now the prosecution is barred u/s 77 of the
Act, 2006 as the sample of the milk was
collected
on
02.11.2010,
therefore,
cognizance cannot be taken in a fresh
complaint filed under the Act, 2006."
11 All. M/s Kewal Dairy Vs. State of U.P. & Anr.
411

8. Hon'ble Apex Court in the case of
State of Rajasthan vs Sanjay Kumar and
others; (1998) 5 SCC 82, considering
Section 469 of Cr.P.C. for the purpose of
the Drugs and Cosmetic Act, 1940
observed that the date of commission of
offence would be the date on which the
report
of
Government
Analyst
was
received. Paras 8 and 9 of State of
Rajasthan vs Sanjay Kumar's case
(supra) is quoted as under;

"8. Now we shall see which
clause of sub-section (1) of Section 469 is
attracted to the facts of the case. For this
purpose it will be necessary to revert to the
facts of this case. The essence of the
offences
charged
is
manufacture
of
adulterated,
sub-standard,
misbranded,
spurious drugs within the meaning of the
relevant provisions of the Act and/or
storage, distribution and sale of such drugs
in contravention of the provisions of the
Act. On the date of collection of samples
from Respondent 16, on 29-2-1988, it could
not have been said that any offence was
committed as selling of drugs per se is no
offence and the quality of the drugs was not
known
to
the
Drugs
Inspector,
the
complainant on that date. It is only when
the report of the Government Analyst was
received, that it came to light that the
provisions of the Act are violated and
offence is committed. So on the facts of this
case it cannot be said that clause (a) of
Section 469(1) is attracted. That the drugs
which were offered for sale were substandard/adulterated within the meaning of
the Act, came to the knowledge of the
Drugs Inspector only on 2-7-1988 when the
report of the Government Analyst was
received by him; and therefore, clause (b)
of Section 469(1) will be attracted.

9. Under cognate legislations of
different States, similar questions arose
before the High Courts. In R.S. Arora v.
State [1987 Cri LJ 1215 : (1987) 1 FAC
283 (Del)] the question which fell for
consideration of the Delhi High Court was
whether for prosecution under Sections 7,
19 and 16(1) of the Seeds Act, 1966, the
period of limitation of six months would
start from the date of collection of samples
under clause (a) or from the date of Seed
Analyst's report for purposes of clause (b)
of Section 469(1) CrPC. The learned Single
Judge of the Delhi High Court took the
view that the limitation commences from
the date of submission of the report by the
Seed Analyst to the Inspector, so Section
469(1)(b) would apply. The same view was
taken by the Bombay High Court in
Omprakash Gulabchandji Partani v. Ashok
[1992 Cri LJ 2704 (Bom)] .

9. Ratio of State of Rajasthan vs
Sanjay Kumar (supra) is also applicable
in the Act, 2006 because, at the time of
collection of a sample of food, no offence
can be said to be committed as there is
no prohibition to sell food which is not
prohibited. It is only when Food Analyst
Report received about unfit/unsafe food,
offence can be said to be committed. In
case of sell of unsafe or sub-standard
milk, the date of commission of offence
would be the date when the report of
Food Analyst is received about its
quality.

10. Thus applying the above Principle
of Law in the present case, date of
commission
of
offence
would
be
10.12.2017. Thereafter application for
seeking approval was submitted by the
Food Safety Officer on 14.05.2018 and
approval under Section 77 of the Act, 2006
was granted on 20.06.2019. Therefore
period between 14.05.2018 to 20.06.2019
would be excluded because of Section
412 INDIAN LAW REPORTS ALLAHABAD SERIES
470(3) Cr.P.C., as Section 470(3) Cr.P.C.
provides exclusion of time taken by
Sanctioning Authority in computation of
limitation. Therefore complaint filed on
04.07.2019 was well within one year.

11. As per the law laid down in Sarah
Mathew vs Institute of Cardio Vascular
Diseases and others; (2014) 2 SCC 62, the
date of cognizance would be the date when
the complaint is filed. Para 51 of Sarah
Mathew's case (supra) is quoted as under;

"51. In view of the above, we hold that
for the purpose of computing the period of
limitation under Section 468 Cr.P.C. the relevant
date is the date of filing of the complaint or the
date of institution of prosecution and not the date
on which the Magistrate takes cognizance. We
further hold that Bharat Kale which is followed
in Japani Sahoo lays down correct law. Krishna
Pillai will have to be restricted to its own facts
and it is not the authority for deciding the
question as to what is the relevant dated for the
purpose of computing the period of limitation
under Section 468 Cr.P.C."

12. In view of the above facts and
legal
position,
in
the
present
case
cognizance is not barred under Section 77
of the Act, 2006 or under Section 468
Cr.P.C.

13. Even if it is accepted for the sake
of argument, the complaint was filed after
one year from the date of commission of
offence, even then the Commissioner had
granted approval for prosecution within 3
years from the date of offence in exercise
of power under Section 77 of the Act,
2006. Section 77 of the Act, 2006 is
being quoted as under;

"Section-77.
Time
limit
for
prosecutions.- Notwithstanding anything
contained in this Act, no court shall take
cognizance of an offence under this Act
after the expiry of the period of one year
from the date of commission of an offence:

Provided that the Commissioner
of Food Safety may, for reasons to be
recorded in writing, approve prosecution
within an extended period of up to three
years.

14. From the perusal of order of the
Commissioner of Food Safety, it appears
that reason was recorded while granting
approval within the extended period of 3
years for initiating prosecution, therefore,
the contention of counsel for the applicant
that no reason was recorded by the
Commissioner of Food Safety while
granting approval for prosecution after the
expiry of the period of one year under
Section 77 of the Act, 2006 is incorrect.

15. So far as the contention of
counsel for the applicant that the offence
is punishable for one year and because of
Section 468 Cr.P.C., the cognizance
cannot be taken after one year is
concerned, is incorrect because as per
Section 77 of the Act, 2006 prosecution
even after one year can be approved by
the Commissioner, Food Safety and the
same has already been approved by the
Commissioner
by
order
dated
20.06.2019. The specific provision of
extension of limitation provided under
Section 77 of the Act, 2006 will prevail
over Section 468 Cr.P.C. because of
Section 89 of the Act, 2006. Section 89 of
Act, 2006 is quoted as follows;

"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
11 All. Ram Taulan Yadav & Anr. Vs. Himanshu Kesarwani & Ors.
413
the time being in force or in any instrument
having effect by virtue of any law other
than this Act."

16. The Apex Court in the case of
Ram Nath vs. State of Uttar Pradesh and
others; (2024) 3 SCC 502 also considered
this issue and held that provision of Act,
2006 will prevail over the provision of any
other Act. Para 26, 27 and 28 of Ram
Nath's case (supra) are quoted as below;

"26.
Thus,
there
are
very
exhaustive
substantive
and
procedural
provisions in FSSA for dealing with offences
concerning unsafe food.

27. In this context, we must
consider the effect of Section 89 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 FSSA over all "foodrelated laws". However, in the main section,
there is no such restriction confined to "foodrelated laws", and it is provided that
provisions of 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. The settled law is that if the
main section is unambiguous, the aid of the
title of the section or its marginal note cannot
be taken to interpret the same. Only if it is
ambiguous, the title of the section or the
marginal note can be looked into to
understand the intention of the legislature."

17. From the above observation in the
judgement of Ram Nath's case (supra), it is
clear that the overriding effect of the FSS Act
is not confined to only food-related laws but
also other Laws including Cr.P.C.

18. So far as the contention of counsel
for the applicant that being sub-standard
sample, the applicant can be prosecuted under
Section 51 not under Section 59, this issue
can be raised at the time of framing of charge
and same cannot be a ground for quashing the
proceeding.

19. In view of the above, this Court
does not find any illegality in the impugned
order as well as impugned proceeding.
Accordingly, the present application is
dismissed.
----------
(2024) 11 ILRA 413
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2024

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Arbitration & Conciliation Application U/S 11(4)
No. 95 of 2023

Ram Taulan Yadav & Anr. ...Applicants
Versus
Himanshu Kesarwani & Ors.
 ...Respondents

Counsel for the Applicants:
Prabhav Srivastava, Rishabh Srivastava,
Ujjawal Satsangi

Counsel for the Respondents:
Abhay Kumar Singh