Prevention of Food Adulteration Act, 1954 – s.17 – Food Safety and Standards Act, 2006 – s.97 – General Clauses Act, 1897 – s.6 – A complaint was filed by inspector of Food and Health on the basis of a sample taken on 07.02.1989 in respect of Dalda Vanaspati Khajoor Brand Ghee manufactured by the Company – The said proceeding was decided by the Supreme Court in R. Banerjee & Ors. v. H.D. Dubey & Ors., wherein the matter was remanded back to the trial Magistrate to inquire into the question whether the nomination forms nominating appellant and one another person were received and acknowledged by the Local (Health) Authority – In terms of the said directions, the trial Court passed an order absolving the directors of the Company and prosecution was ordered to continue against the appellant/nominated officer – Thereafter, the trial Court in 2015, convicted the appellant under various provisions of the 1954 Act – There was no order passed by the trial Court to convict the Company of any offence – In an appeal, the Additional Sessions Judge affirmed the conviction of the appellant – However, the High Court in its order noticed that if the Company is acquitted of the charges, the said benefit will also directly go to the appellant – Thus, the conviction and sentence passed against the appellant, being a nominated person of the Company was set aside and the matter was remitted back to the trial Court for passing the fresh judgment – Before the Supreme Court, the appellant sought benefit under the Food Safety and Standards Act, 2006 which came after the Prevention of Food Adulteration Act, 1954 was repealed – Held: In the 2006 Act, the repeal and saving clause contained in s.97(1)(iii) and (iv) specifically provides that repeal of the Act shall not affect any investigation or remedy in respect of any such penalty, forfeiture or punishment and the punishment may be imposed, “as if the 2006 Act had not been passed” – Thus, in view of s.97 of the 2006 Act, as also u/s.6 of the General Clauses Act, 1897, the proceedings would continue under the 1954 Act – No benefit can be taken under the 2006 Act as the prosecution and punishment under the 1954 Act is protected – As far as the course adopted by the High Court to remand the matter to the trial Court is concerned, there is no material distinction between s.141 of the Negotiable Instruments Act, 1882 and s.17 of the 1954 Act which makes the companies as well as the nominated person to be held guilty of the offences and/or liable to be proceeded and punished accordingly – Clauses (a) and (b) of s.17 are not in alternative but in conjoint – Therefore, in the absence of the Company, the nominated person cannot be convicted or vice-versa – Since the Company was not convicted by the trial Court, the finding of the High Court to revisit the judgment will be unfair to the appellant/nominated person who has been facing trial for more than last 30 years – The failure of the trial Court to convict the Company renders the entire conviction of the nominated person as unsustainable – Thus, the order passed by the High Court is set aside.
Allowing the appeals, the Court
HELD: 1. In terms of Section 6 of the General Clauses Act, 1897, unless a different intention appears, the repeal of a statute does not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. But in the Food Safety and Standards Act, 2006, the repeal and saving clause contained in Section 97 (1)(iii) and (iv) specifically provides that repeal of the Act shall not affect any investigation or remedy in respect of any such penalty, forfeiture or punishment and the punishment may be imposed, “as if the 2006 Act had not been passed”. [Para 15][465-E-G]
2. Thus, in view of Section 97 of the 2006 Act, as also under Section 6 of the General Clauses Act, 1897, the proceedings would continue under the Act. No benefit can be taken under the 2006 Act as the prosecution and punishment under the Act is protected. [Para 17][466-C-D]
3. The question now narrows down as to whether the course adopted by the High Court to remand the matter to the trial court after more than 30 years to cure the defect which goes to the root of the trial, though permissible in law, is justified. [Para 19][468-F]
4. Clause (a) of Sub-Section (1) of Section 17 of the Prevention of Food Adulteration Act, 1954 makes the person nominated to be in charge of and responsible to the company for the conduct of business and the company shall be guilty of the offences under clause (b) of Sub-Section (1) of Section 17 of the Act. Therefore, there is no material distinction between Section
141 of the NI Act and Section 17 of the Act which makes the Company as well as the Nominated Person to be held guilty of the offences and/or liable to be proceeded and punished accordingly. Clauses (a) and (b) are not in the alternative but conjoint. Therefore, in the absence of the Company, the Nominated Person cannot be convicted or vice versa. Since the Company was not convicted by the trial court, this Court finds that the finding of the High Court to revisit the judgment will be unfair to the appellant/Nominated Person who has been facing trial for more than last 30 years. Therefore, the order of remand to the trial court to fill up the lacuna is not a fair option exercised by the High Court as the failure of the trial court to convict the Company renders the entire conviction of the Nominated Person as unsustainable. [Para 22][471-A-D]
State of Punjab v. Mohar Singh AIR 1955 SC 84 : [1955] 1 SCR 893; Tiwari Kanhaiyalal & Ors. v. Commissioner of Income Tax, Delhi (1975) 4 SCC 101 : [1975] 3 SCR 927; Aneeta Hada v. Godfather Travels & Tours Private Limited (2012) 5 SCC 661 : [2012] 5 SCR 503 – relied on.
R. Banerjee & Ors. v. H.D. Dubey & Ors. (1992) 2 SCC 552 : [1992] 2 SCR 221; Nemi Chand v. State of Rajasthan (2018) 17 SCC 448; T. Barai v. Henry Ah Hoe & Anr. (1983) 1 SCC 177 : [1983] 1 SCR 905; Trilok Chand v. State of Himachal Pradesh (2020) 10 SCC 763 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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