K. Muhammed Anwar v Food Inspector, Kozhikode Corporation; State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938 Crl.Rev.Pet.No. 12 of 2011 ( ) ------------------------------Crl.A 655/2007 of ADDL.S.C. KOZHIKODE-III ST 1508/2006 of SPL.J.M.F.C. FOR TRIAL OF MARADU CASES, KOZHIKODE ## REVISION PETITIONER/APPELLANT/ACCUSED: --------------------------------------------------------- K.MUHAMMED ANWAR, AGED 48 YEARS, S/O.MOIDEENKUTTY, PALLIPARAMBATH (H), MUNNIYOOR.P.O., MALAPPURAM DISTRICT. BY ADV. SRI.M.MUHAMMED SHAFI ## RESPONDENTS/RESPONDENTS/COMPLAINANT: --------------------------------------------------------- 1. FOOD INSPECTOR, KOZHIKODE CORPORATION, KOZHIKODE. 673 001. ## 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. R1 &R2 BY BY PUBLIC PROSECUTOR, SHRI.R.GITHESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-04-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J --------------------------------------Crl.R.P. No. 12 of 2011** **----------------------------------------** Dated this the 8[th] day of April, 2016 ## **ORDER** The petitioner is the sole accused in ST No.1508 of 2006 on the files of the Special Judicial First Class Magistrate Court, (Marad Cases), Kozhikode. The revision petitioner was convicted by the trial under sections 2(ix) k, 7(ii) and 16(1) (a)(i) of the Prevention of Food Adulteration Act, 1954 (for short ”PFA Act” and Rule 48 C of Prevention of Food Adulteration Rules, 1955 (for short “PFA Rules”). The appeal filed against the said conviction and sentence was dismissed by the appellate court. Aggrieved by the said conviction and sentence, this revision petition has been filed. 2. The prosecution allegation can be briefly stated as follows:- On 13.2.2006 at about 2.00 p.m., PW1, the Food Inspector purchased 9 packets of Galatine (Food Grade), each packet having a weight of 50 gm each, from the Crl.R.P.No.12/2011 2 accused. After sampling as per rules, one sample was sent to the public analyst for analysis. Ext.P10 report of the public analyst would show that the sample contravened the label provision as per Rule 48 C of PFA Rules and therefore the same was mis-branded as per section 2(ix) k of the PFA Act. 3. The learned counsel for the revision petitioners has argued that since Rule 48 C of the PFA Rules was deleted from the Statute with effect from 5-7-2006, the conviction and sentence passed by the courts below cannot be sustained. Per contra, the learned Public Prosecutor has argued that eventhough Rule 48 C of the PFA Rules was deleted as per notification issued by the Central Government, the conviction and sentence passed by the Courts below do not warrant any interference by this Court in view of the provisions of Section 6 of the General Clauses Act, 1897. 4. In this context, it will be profitable to quote Section 6 of the General Clauses Act, which reads as follows:“ **6. Effect of repeal** ,- Where this Act, or any Central Crl.R.P.No.12/2011 3 Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceedings 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 Crl.R.P.No.12/2011 4 been passed.” 5. The term “Central Act” has been defined in Section 3 - (7) of the General clauses Act, which shall mean an Act of Parliament, and shall include- (a) an Act of the Dominion Legislature or of the Legislature passed before the commencement of the Constitution, and (b) an Act made before such commencement by the Governor General in Council or the Governor General, acting in a legislative capacity. 6. The term “enactment” as defined in Section 3(19) of the General Clauses Act shall include a Regulation (as hereinafter defined and any Regulation of the Bengal, Madras or Bombay Code, and shall also include any provision contained in any act or in any such Regulation as aforesaid). 7. The term “regulation” as defined in Section 3 (50) Crl.R.P.No.12/2011 5 of the General Clauses Act means a regulation made by the President under Article 240 of the Constitution and shall include a regulation made by the President under Article 243 thereof and a regulation made by the Central Government under the government of India Act, 1870, or the Government of India Act, 1915, or the Government of India Act, 1935. 8. The term “rule” as defined in Section 3 (51) of the General Clauses Act means a rule made in exercise of power conferred by any enactment, and shall include a regulation made as a rule under any enactment. 9. When the term Central Act or Regulation or Rule is used in the General Clauses Act, reference has to be made to the definition of that term in the Statute. It is neither possible nor permissible to give a meaning to any of the terms different from the definition. It is manifest that each term has a distinct and separate meaning attributed to it for the purpose of the Act. Therefore, when the question to be Crl.R.P.No.12/2011 6 considered is whether a particular provision of the Act applies in a case, then the clear and unambiguous language of that provision has to be given its true meaning and import. When the legislature by clear and unambiguous language extended the provision of Section 6 to cases of repeal of a “Central Act” or regulation, it is not possible to apply the provision to a case of repeal of a rule. The Constitution Bench of the Apex Court in Messrs Rayala Corporation (P) Ltd. and M.R.Pratap v. Director of Enforcement, New Delhi [1969(2) SCC 412] held that Section 6 of the General Clauses Act applies only when the repeal is of a Central Act or regulation and not of a rule. Another Constitution Bench of the Apex Court in Kolhapur Canesugar Works Ltd. and another v. Union of Indian and others [(2000)2 SCC, 536] quoted the decision in Rayala Corporation (supra) with approval and held that Section 6 of the General Clauses Act is applicable where any Central Act or Regulation made after the commencement of the General Clauses Act repeals any enactment and it is not applicable in the case of omission of a rule. It is clear from the above Crl.R.P.No.12/2011 7 discussion that Section 6 of the General Clauses Act is not applicable when a rule is repealed/deleted. Therefore, no prosecution can be instituted even in respect of an act, which was an offence when the rule was in force, if there is no saving provision similar to Section 6 of the General Clauses Act in the notification repealing/deleting the rule. 10. The Apex Court in Fiber Boards Pvt. Ltd. Bangalore v. Commissioner of Income Tax, Bangalore [(2015) 10 SCC 333] held in paragraph 31 thus:- “First and foremost, it will be noticed that two reasons were given in Rayala Corpn. (P) Ltd for distinguishing the Madhya Pradesh High Court Judgment. Ordinarily, both reasons would form the ratio decidendi for the said decision and both reasons would be binding upon us. But we find that once it is held that Section 6 of the General Clauses Act would itself not apply to a rule which is subordinate legislation as it applies only to a Central Act or Regulation, it would be wholly unnecessary to state that on a construction of the word “repeal” in Section 6 of the General Clauses Act, “omissions” made by the legislature would not be included. Assume, on the other hand, that the Constitution Bench had given two reasons for the non-applicability of Section 6 of the General Crl.R.P.No.12/2011 8 Clauses Act. In such a situation, obviously both reasons would be ratio decidendi and would be binding upon a subsequent Bench. However, once it is found that Section 6 itself would not apply, it would be wholly superfluous to further state that on an interpretation of the word “repeal”, an “omission” would not be included. We are, therefore, of the view that the second so-called ratio of the Constitution Bench in Rayala Corpn. (P) Ltd cannot be said to be a ratio decidendi at all and is really in the nature of obiter dicta”. In Fiber Boards (supra), the Apex Court held that the principle enunciated by the Constitution Bench in Rayala Corporation that on a construction of the word “repeal” in Section 6 of the General Clauses Act, “omissions” made by the legislature would not be included, is in the nature of obiter dicta. However, it was further held by the Apex Court in Fiber Boards (supra) that the principle enunciated by the Constitution Bench in Rayala Corporation (supra) that section 6 of the General Clauses Act is not applicable to Rules, is ratio decidendi. The Apex Court in Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise (2015 SCC OnLine SC 1243) quoted the decision in Fiber Boards (supra) 9 Crl.R.P.No.12/2011 with approval. 11. In the present case, Section 6 of the General Clauses Act has no application as the rule alone was deleted. There is no saving provision in favour of pending proceedings in the notification, G.S.R.400(E) dated 23rd June/5th of July,2006, deleting Rule 48 C from the Rules. Therefore, the continuation of the proceedings initiated for the violation of Rule 48 C cannot be justified. The consequence that follows is that the proceedings lapsed with effect from the date of notification, deleting Rule 48 C from the Rules and any order passed in the proceedings thereafter is to be treated as nonest. This being the legal position, the judgement of the trial court dated 1-8-2007 convicting and sentencing the revision petitioner under Section 2(ix) k, 7(ii) and 16(1)(a)(i) of the PFA Act for having contravened the provisions of Rule 48 C of the PFA Rules and the judgement dated 29-10-2010 of the appellate court confirming the said conviction and sentence, cannot be sustained and consequently, I set aside the same and acquit the revision petitioner for the said offence. Crl.R.P.No.12/2011 10 12. The courts below concurrently found that the revision petitioner did not have the valid licence under the PFA Rules to sell the food item on the relevant date. No material is available before the court to hold that the revision petitioner had a valid licence to sell the food item on the relevant date. The learned counsel for the revision petitioner submitted that even though the revision petitioner had the licence to sell the food item, the revision petitioner did not renew the same during the relevant period. However, the licence was subsequently renewed. The food item involved in this case was not adulterated. The revision petitioner is presently aged 53 years. No previous conviction has been proved against the revision petitioner. Considering the facts and circumstances of the case, including the fact that the food item sold by the revision petitioner was not adulterated, I am of the view that the sentence can be awarded under second proviso to Section 16 (1) of the PFA Act and accordingly, the sentence awarded by the courts below stands modified and reduced to imprisonment till the rising of the court and a fine of Rs.500/- 11 Crl.R.P.No.12/2011 (five hundred only) and in default to simple imprisonment for 10 days under Section 16(1)(a)(ii) and 7(iii) of the PFA Act 1954 r/w Rule 50(1) of the PFA Rules, 1955 and Rule 10 of Kerala PFA Rules, 1967, to meet the ends of justice, and accordingly I order so. In the result, the Revision Petition stands allowed in part as above. ## **Sd/-** **B.SUDHEENDRA KUMAR,JUDGE.** dlk // True Copy // PA to Judge