Food for Thought: the Supreme Court on Inconsistent Legislation

In its judgment dated 14 December 2023, the Supreme Court of India (SCI) in the case of Manik Hiru Jhangiani v State of Madhya Pradesh allowed the appeal against a judgment of the Madhya Pradesh High Court, which had upheld the cognisance taken by the Trial Court for the alleged offence of misbranding under the Prevention of Food Adulteration Act, 1954 (PFAA). The alleged offence was stated to have been committed in the period following the coming into force of the relevant provisions of the Food Safety and Standards Act, 2006 (FSSA) pertaining to misbranding, but prior to the repeal of the PFAA.

The High Court had held that the offence alleged against the petitioner was of misbranding, which had taken place prior to the repeal of the PFAA. Hence, within a period of three years from the date of repeal, the learned Magistrate was empowered to take cognisance under the PFAA, in view of the sunset clause contained in Section 97(4) of the FSSA. It was further observed by the High Court that no inconsistency had been shown between the two laws relating to the offence of misbranding. The SCI has set aside the decision of the High Court in appeal, and held that in view of the overriding effect given to the provisions of the FSSA by virtue of Section 89 of the FSSA, a violator who indulges in misbranding cannot be punished under the PFAA, and can only be made liable to pay monetary penalties under the FSSA.

The authors represented the petitioner before the SCI.

The SCI, while setting aside the order of the High Court, took note of the difference in the regime of law prevailing under both laws. Under the PFAA, for the offence of misbranding, a person could be sentenced to imprisonment for a minimum period of six months as well as with a fine; whereas, for a similar violation under the FSSA, only a penalty of up to INR3 lakhs is prescribed. Based on the aforesaid differences in the regime under the two laws, it was held that the High Court had erred in its finding that there was no inconsistency in the provisions relating to misbranding under the PFAA and the FSSA.

It was further noted by the SCI that Section 97(4) of the FSSA provides that, notwithstanding the repeal of the PFAA, cognisance of an offence committed under the PFAA can be taken within three years from the date of commencement of the FSSA. The implication of subsection (4) of Section 97 is that if an offence is committed when the PFAA was in force, cognisance of the crime can be taken only within three years from the date of commencement of the FSSA. In the case at hand, on the day on which the alleged offence was committed, both the FSSA as well as the PFAA were in force. Hence, the offender could have been sentenced to imprisonment under the PFAA and under the FSSA, and could have been directed to pay the penalty of up to INR3 lakhs. Thus, when the penal action can be taken under both statutes, the question concerns which will prevail.

The SCI then proceeded to answer the question with reference to Section 89 of the FSSA, which provides for an overriding effect of the FSSA over all other food-related laws. The SCI held that the effect of Section 89 is such that if there is an inconsistency between the provisions of the PFAA and the FSSA, the provisions of the FSSA will have an overriding effect over the provisions of the PFAA. In this context, the SCI held that the consequences of misbranding had been provided under both enactments, and there was inconsistency in the enactments as regards the penal consequences of misbranding. In view of such inconsistency, Section 89 of the FSSA operates, and provisions of the FSSA prevail over the provisions of the PFAA to the extent that these are inconsistent. Therefore, in such a situation, in view of the overriding effect given to the provisions of the FSSA, a violator who indulges in misbranding cannot be punished under the PFAA, and will be liable to pay penalties under the FSSA.

Since the date on which the FSSA was notified, the issue regarding which law would prevail has arisen before courts on numerous occasions, with differing and sometimes contradictory views being expressed by different High Courts.

The issue was dealt with by a division bench of the Allahabad High Court in the case of M/s Pepsico India Holdings Pvt Ltd v State of UP and Another; 2011(2)Crimes250. Here, it was observed that the offences relating to misbranding are governed under the FSSA after the date on which the provision relating thereto was notified, as it postulates an overriding effect over all other food-related laws, including the PFAA.

A contrary view was taken by several High Courts, including another division bench of the Allahabad High Court, which were of the view that unless a notification under Section 97(1) (ie, notifying the date of repeal of the Second Schedule enactments, including the PFAA) is issued by the central government, the PFAA cannot be treated as repealed. Consequently, action could be taken under the PFAA irrespective of the FSSA having come into force – see the following:

The SCI decision has finally settled the question regarding which of the enactments dealing with food laws will prevail when penal action can be taken under both the PFAA and FSSA. This will likely bring about consistency in judicial pronouncements going forward. Further, the principle of law laid down in the SCI decision for determining the applicability of either the preceding or succeeding statute in a given case has wider application for covering other statutes as well. The SCI decision is also important in the context of ongoing decriminalisation of laws, including certain provisions of food laws, whereby offences which were earlier met with criminal sanctions are now met with sanctions of penalties alone. The SCI decision has re-emphasised the cardinal principle that no accused can be convicted for an ex post facto law, though the benefit of a reduced punishment can be granted to the accused.