The Calcutta High Court has dismissed three review petitions seeking to quash three criminal proceedings initiated under Sections 272, 273, 420, 120B of IPC. The grounds on which the petitioners challenged the proceedings were that the Police not being a Food Safety Officer under the Food Safety and Standard Act 2006 could not investigate the matter. Secondly, contended that an FIR could not have been registered for offences under Section 272, 273 of IPC without an order of Magistrate under Section 155 (2) CrPC.

In the pertinent three cases, a huge quantity of alleged adulterated and spurious food items was seized from the possession of the petitioners, where the investigation is being conducted by the police.

Ruling against the petitioners, a bench of Justice Subhendu Samanta thus observed, “The police is not specifically debarred to conduct investigation over the offence mentioned in Section 272/273 of IPC. It is true the police not being Food Safety Officer under FSS Act 2006 are not empowered to investigate into the offences mentioned specially in FSS Act. But nothing can debar police to investigate an offence punishable under IPC. The argument of implied repeal of Section 272/273 IPC appears to me not satisfactory or justified… Considering the same I am of a clear view that though a separate, specific, distinct procedure has been laid down in FSS Act 2006 to initiate/launch a proceeding against the offender of Food Laws that does not ipso facto debar the police to initiate/register a case u/s 272 or 273 of IPC.”

Advocate Ayan Bhattacharjee appeared for the petitioner and Advocate Sudip Ghosh appeared for the respondent.

The petitioners in the matter argued that the proceedings initiated is a gross abuse of process of court which if allowed to be continued that would be tantamount to be the harassment beyond the scope of law of the land.

The court, after hearing the arguments, noted that in the three cases, the Food Safety Officer had initially launched the prosecution and lodged an FIR with the police. However, in the other two cases, the police initiated the proceeding, and Sections 272 and 273 of the IPC were not deleted.

Therefore, while referring to the Supreme Court’s observations in State of Maharashtra & Anr. Vs. Sayyed Hasan and Sayyed Subhan and Ors, (2019) 18 SCC 145 and by virtue of the principle under Section 26 of General Clauses Act, the Court held that the investigation by the police is not legally bad and petitioners will not be put into jeopardy for continuance of the proceedings.

Furthermore, while answering the second question involved the bench noted that it will have to assess the value of the materials collected by the police during investigation, which can only be done by the trial court at appropriate stage.

Therefore, the Court held, “At this juncture, whether the material collected by the police are justifiable or not to make out a case u/s- 420 or 120B IPC cannot be answered. So, the presence of Section 420 IPC in the FIR is whether a colourable exercise of police or nor; can not be ascertained at this stage. It is true that Section- 420 IPC is non-cognizable in nature, the police may conduct investigation of non-cognizable case (u/s 272,273, IPC) with cognizable case (u/s- 420 IPC) without an order of Magistrate u/s 155 (4) CrPC.”

“In principle, this revision court cannot look into the merit of the materials and surprisingly petitioners also don’t have the excess to the materials; mini trial at the stage of quashing by the revisional court is completely barred. Furthermore, when it is in respect of the merit of a case on the basis of materials collecting by the investigating agency this revisional court cannot act as trial court. In my view, the application for quashing of FIR of a Criminal Case is not at all maintainable when the police report has submitted charge sheet u/s 173 of the Cr.P.C. before the Magistrate after conclusion of investigation”, the judgment further read.

The Food Safety Officer is defined under Section 3(t) of the Act which means an officer appointed u/s 37 and Section 37 empowers the Central Government or State Governments concerned to appoint such officers as a Food Safety Officers for the purpose of the said Act 2006.

Cause Title: Sushil Kr. Gupta v The State of West Bengal

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