# Satyendra Kesharwani v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 567
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-22
- **Case number:** U/S 482/378/407 No. 5605 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satyendra-kesharwani-v-state-of-u-p-anr-46620
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860Sections 420, 272, 273-quashing of chargesheet-Several persons including the petitioner
was made accused as in the Godown several
bags of broom seeds were found to have been
mixed with cumin seeds-as per opinion given
by the Analyst sample of Phool Jhadoo seeds
was not a food item, and it was noxious for
human consumption as per section 3.1(zz) 11
of the Food Safety and Standards Act, 2006arguments made by the petitioner that only
because the Food Safety and Standard Act,
2006 was applicable and wrong section has
been applied in the Charge-sheet, the offence
committed by the accused would not washed
away.(Para 1 to 14)

The application is rejected. (E-6)

List of Cases cited:

## Text

11 All. Satyendra Kesharwani Vs. State of U.P. & Anr.
567
is concerned, this Court has gone through the
Schedule and Article 59 of the Scheduled attached
to Limitation Act relied upon, which is mentioned
under part IV "Suits relating to Decree or an
instrument" and it finds that the limitation of three
years is only from the date of knowledge. In this
case knowledge was drived by the opposite party
no.4, Waqf Sajjadia Kadeem va Jadeed sometime
in 2016, and the application under Section 156(3)
of the Cr.P.C. was lodged on 23.07.2018 after the
U.P. Shia Central Waqf Board sent letter to the
Senior Superintendent of Police and the District
Magistrate on 24.10.2016 for taking appropriate
action for protecting the property of the Waqf
Board.

15. No case has been made by the learned
counsel for petitioner to show interference in the
summoning order or the bailable warrant issued
against her.

16. Accordingly, this petition stands rejected.
----------
(2021)12ILR A567
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.12.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

U/S 482/378/407 No. 5605 of 2021

Satyendra Kesharwani ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Virendra Kumar Tripathi, Alok Kumar Gupta

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860Sections 420, 272, 273-quashing of chargesheet-Several persons including the petitioner
was made accused as in the Godown several
bags of broom seeds were found to have been
mixed with cumin seeds-as per opinion given
by the Analyst sample of Phool Jhadoo seeds
was not a food item, and it was noxious for
human consumption as per section 3.1(zz) 11
of the Food Safety and Standards Act, 2006arguments made by the petitioner that only
because the Food Safety and Standard Act,
2006 was applicable and wrong section has
been applied in the Charge-sheet, the offence
committed by the accused would not washed
away.(Para 1 to 14)

The application is rejected. (E-6)

List of Cases cited:

1. M/s Pepsico India Holdings Pvt. Ltd. & anr. Vs St.
of U.P. & ors., WP No. 8254 of 2010

2. Jeewan Kumar Raut & anr. Vs C.B.I. (2009) 7 UJ
SC 3135

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

(1) Heard the learned counsel for the parties
and perused the record.

(2) This petition has been filed for the
following main prayer:-

" Wherefore, It is most respectfully
prayed that Hon'ble Court may kindly be
pleased to:

(a) To quash the charge sheet filed by
I. O. against the petitioner in case Case Crime
No. 551 of 2019, Under Sections 420, 272, 273
I.P.C. Police Station : Maharajganj, District:
Raibareily, Which is annexed as Annexure No.
7."

(3) It has been submitted by the learned
counsel for the petitioner that the petitioner had
earlier filed a Petition No. 415 (M/B) of 2020
challenging the FIR which has been dismissed as
infructuous by this Court on 07.12.2021 as
568 INDIAN LAW REPORTS ALLAHABAD SERIES
Charge sheet has been filed against the petitioner
by the opposite party no.2 i.e. Station House
Officer, Police Station Maharajganj, District Rae
Bareli. In the FIR it was alleged that the Station
House Officer has apprehended several persons
involved in adulteration of cumin seeds (Jeera)
on the basis of information received from
informer in Maharajganj Qasba. Several persons
including the petitioner was made accused as in
the Godown several bags of broom seeds (Phool
Jhadoo) were found to have been mixed with
cumin seeds.

(4) It has been submitted by the learned
counsel for the petitioner that the Investigating
Officer did not conduct a proper investigation
and submitted Charge-sheet. The learned Trial
Court without application of judicial mind has
taken cognizance and issued summoning order.
It has been submitted that the FIR has been filed
under Sections 272, 273 of the IPC whereas the
cases of adulteration are now governed by
Special Act that is the Food Safety Act. The
Investigating Officer recorded the statement of
the Incharge Chief Food Safety Officer, Rae
Bareli, and his subordinates who were working
as
Food
Safety
Officer
that
they
had
accompanied the police personnel on the raid
conducted on the Godown where 150 bags of
broom seeds (Fake cumin seeds) approximately
75 quintals of Jeera mixed with Phool Jhadoo
seeds
were
found.
The
Phool
Jhadoo
seeds/Jhadoo seeds were found noxious for
human consumption as per the report of the
Public Analyst Laboratory, U.P., Lucknow
under Sections 3.1 (ZZ) (xi) of Food Safety and
Standard Act, 2006. The Charge sheet having
been submitted wrongly under various sections
of the IPC. The cognizance was initiated and the
summoning order issued without application of
mind.

(5) Learned counsel for the petitioner has
placed reliance upon the Division Bench
judgment of this Court in Writ Petition No.8254
(M/B) of 2010 [M/s Pepsico India Holdings
(Pvt) Limited and Another Vs. State of U.P.
and Others] and connected matters all filed by
Pepsico India Holdings, the petitioner therein
had questioned the validity of the Government
Order dated 11.05.2010 directing the Police to
register cases or initiate action under Sections
272/273 IPC and one of the grounds taken was
that after coming into force of the Food Safety
and Standard Act, 2009 action could be taken
only under the Special Act, in case of any
offence relating to adulteration /mis-branding of
food
articles.
The
Division
Bench
has
considered Section 89 of the Food Safety and
Standard Act which gave overriding effect to the
Act over other food related laws, and Section 97
of the Act which sought to repeal other food
laws in case of the offences specified in the
Second schedule of the Act immediately with
effect from the date of which the Act came into
force. Sub Section (4) thereof stated that
notwithstanding anything contained in any other
law for the time being in force, no Court shall
take cognizance of an offence under the repealed
Act or orders after the expiry of a period of three
years from the date of the commencement of this
Act.

(6) This Court has carefully perused the
judgment cited by the learned counsel for the
petitioner. It was argued before the Division
Bench that after the aforesaid Act came into
force the Food Safety Standards Act is the only
law relating to and dealing with the offences
regarding adulteration of food. The Government
Order directing the Divisional Commissioners,
District Magistrates, Deputy Inspector Generals
of Police, Senior Superintendent of Police and
Superintendent of Police to lodge FIR under
Sections 272/273 IPC in case of adulteration of
any article of food or drink was therefore issued
without jurisdiction, and in violation of the
provisions of Food Safety and Standards Act. It
was argued before the Court that Section 272 is
attracted if any person adulterates an article of
11 All. Satyendra Kesharwani Vs. State of U.P. & Anr.
569
food with the intention to sell such an article or
knowing that it is likely that the article will be
sold as food or drink. However, there was no
allegation in the FIR that the petitioner-company
or its employees or agents had kept its products
with the intention to sell the same, or knowing
that the products are likely to be sold as food or
drink or that the said products were exposed or
offered for sale. The definite stand of the
company was the articles seized were kept in the
godown where even a board "not for sale" was
hanging at the time when the search was
conducted.

(7) The Court observed that the IPC is a
general Penal Code for India. Section 2 IPC
deals
with
the
punishment
of
offences
committed within India and provides that every
person shall be liable to punishment under this
Code and not otherwise for every act or
omission contrary to the provisions thereof, of
which he shall be guilty within India. Section 5
thereof specifically excludes its application in a
case where there is a Special Act. Since the
Prevention of Food Adulteration Act, the precursor of the Food Safety & Standards Act was a
Special Act it overrides Sections 272 & 273 IPC.
The Division Bench referred to a judgment of
the Guwahati High Court also relating to Food
Adulteration matters and also to a judgment of
the Supreme Court in Jeewan Kumar Raut and
Another Vs. Central Bureau of Investigation
reported in [2009 (7) UJ SC 3135], where the
Supreme was considering the provisions of
Transplantation of Human Organs Act, 1994,
and held that if a Special statute lays down
procedures, the ones laid down under the general
statutes shall not be followed.

(8) The Division Bench came to the
conclusion that after coming into force of the
provision of the Food Safety and Standards Act
by
a
Notification
dated
29.07.2010
the
Authorities can take action only in the Food
Safety and Standard Act, as it has over riding
effect over all other laws relating to food and its
sale, therefore, if an article is seized it has to be
treated as per the procedure to be followed for
drawing a sample as given in the said Act, and it
is necessary for the Authorities to follow
mandatory requirements as provided under
Section 41-42 of the said Act, and police have
no Authority to investigate the matter.

Under Section 42 of the Food Safety
and Standards Act, The Food Safety Officer
shall be responsible for inspection of food
business, drawing samples and sending them to
Food Analyst for analysis. The Designated
Officer after scrutiny of the report of Food
Analyst shall decide as to whether the
contravention is punishable with imprisonment
or fine only, and in the case of contravention
punishable with imprisonment, he shall send his
recommendations within fourteen days to the
Commissioner of Food Safety for sanctioning
prosecution. The Court therefore, held that
invoking Sections 272-273 IPC in matters
relating to adulteration of food pursuant to the
impugned Government Order was wholly and
justified and by issuing such order, the State
Government had transgressed its jurisdiction. It
therefore, set aside the impugned Government
order dated 11.05.2010 and consequently, the
FIR registered in the case in pursuance of such
Government Order and the criminal proceedings
initiated against the Company.

(9) It has been submitted by the learned
counsel for the petitioner that the law settled by
the Division Bench, clearly applies in his case as
the investigation, drawing of samples, sending
them for Analyst etc. was not done as per the
procedure prescribed under the Food Safety and
Standards Act.

(10) Shri S.P. Tiwari, learned A.G.A. on
the other hand, has pointed out that the statement
taken by the Investigating Officer clearly reveals
that the Food Safety Officers had accompanied
570 INDIAN LAW REPORTS ALLAHABAD SERIES
the
Inspection
Team,
and
therefore
the
procedure that was followed for inspection of
the godown of the petitioner was under the Food
Safety and Standards Act. The sample was sent
to the Government Public Analyst Laboratory,
Lucknow and Dr. Rajesh Kumar duly appointed
as Food Analyst under the provisions of Food
Safety and Standards Act, 2006 for U.P.
received the samples from the Food Safety
Officer Laboratory. The condition of the seal on
the samples and outer covering of such sample
was found intact and unbroken. Dr. Rajesh
Kumar, the Analyst found the sample of Phool
Jhadoo seeds unfit for human consumption
under Regulations 2.9.8 (1) of the Food Safety
and Standards (Food Products and Food)
Regulation 2011. The method of testing of the
sample was as per the prescribed standards in
the Regulations of 2011 and it was an analyzed
as per the Food Safety and Standards Manual of
2016. It was found on the basis of test performed
as per the Manual, that the extraneous material
exceeds the prescribed limit 3.0 in the sample
and the sample was found as sub standard by the
Food
Analyst
and
noxious
for
human
consumption. The opinion given was that the
sample of Phul Jhadoo seeds was not a food
item,
and
it
was
noxious
for
human
consumption, and the sample was declared
'noxious' as per the Section 3.1 (zz) 11 of the
Food Safety and Standards Act, 2006.

(11) It has been submitted by the learned
A.G.A. that only because the Food Safety and
Standards Act would apply in such matter, the
offence of cheating as described under Section
420 of the I.P.C. cannot be said to have become
rebundant. It was open for the Authorities to
take action only under the Food Safety and
Standards Act or take action also under the IPC
as Section 272 and 273 relates to addictions of
noxious substance in a food item Phul Jhadoo
seeds were found to be noxious enough for
human consumption and therefore action could
have been taken under Sections 272-273 also.

(12) After considering the arguments of the
learned counsel for the petitioner and the learned
A.G.A. and going through the judgment of the
Division Bench in Pepsico (Supra), this Court is
of the opinion that it is still open for the
Investigating Officer to file supplementary
charge sheet under various provisions of Food
Safety and Standards Act. The Charge sheet may
have been submitted under the provisions of IPC
and cognizance may have been taken but that
does not exclude the application of the Food
Safety and Standards Act in the case of the
petitioner.

(13) This Court is not convinced with the
arguments made by the learned counsel or the
petitioner that only because the Food Safety
and Standard Act, 2006 was applicable and
wrong section has been applied in the Charge
sheet
upon
the
petitioner,
the
offence
committed by the accused would not stand
washed away.

(14) There being no good ground to show
interference at this stage in the Charge-sheet or
the summoning order because the ends of justice
would not be served in case this Court shows
interference in such a gross misconduct of the
accused, this petition stands dismissed.
----------
(2021)12ILR A570
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.12.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

U/S 482/378/407 No. 5635 of 2021

Manoj Kumar Jaiswal ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Anil Kumar Tripathi