Case Note & Summary
The petitioners, including the driver, cleaner, owner of a truck, and a transporter, challenged an order dated 15/7/2020 issued by the Food Safety Commissioner, Maharashtra, under Section 30(2)(a) of the Food Safety and Standards Act, 2006 (FSSA), which prohibited the transport of banned products such as tobacco and Pan Masala from one State to another through Maharashtra. They also sought quashing of FIR No.358/2020 registered against them for offences under Sections 26(2)(i), 26(2)(iv), 26(3), 59 of the FSSA and Sections 188, 272, 273, 328 of the Indian Penal Code (IPC). The petitioners had transported four consignments of Vimal Pan Masala, Jarda, and scented tobacco from Valsad, Gujarat to Joda, Odisha, with valid invoices, e-way bills, and lorry receipts. The truck was intercepted in Washim, Maharashtra, and the FIR was lodged. The court examined the scope of Section 30(2)(a) of the FSSA, which empowers the Commissioner to prohibit the manufacture, storage, distribution, sale, or import of any food article within the State, but does not extend to prohibiting transport through the State. The court held that the order to the extent it prohibits inter-State transport is ultra vires. Regarding the FIR, the court found that the petitioners were merely transporting the goods through Maharashtra, not importing, manufacturing, storing, distributing, or selling them within the State, so the FSSA offences were not attracted. The IPC offences were also not made out as there was no allegation of disobedience to a lawful order, adulteration, sale of adulterated food, or administration of poison. The court quashed the FIR and set aside the order to the extent it prohibited transport through Maharashtra, but upheld the rest of the order.
Headnote
A) Food Safety and Standards Act, 2006 - Section 30(2)(a) - Powers of Commissioner - Prohibition of Inter-State Transport - The Commissioner of Food Safety does not have the power under Section 30(2)(a) to prohibit the transport of banned products from one State to another through the State of Maharashtra, as the provision only empowers prohibition of manufacture, storage, distribution, sale, or import within the State. The order dated 15/7/2020 to the extent it prohibits transport through Maharashtra is ultra vires. (Paras 2, 4-6)
B) Food Safety and Standards Act, 2006 - Sections 26(2)(i), 26(2)(iv), 26(3), 59 - Offences - Transport of Banned Products - The FIR under these sections is not maintainable as the petitioners were only transporting the products through Maharashtra, not importing, manufacturing, storing, distributing, or selling them within the State. The consignments were from Gujarat to Odisha with valid documents. (Paras 3, 7-8)
C) Indian Penal Code, 1860 - Sections 188, 272, 273, 328 - Applicability - Transport of Banned Products - The FIR under these IPC sections is not maintainable as there is no allegation of disobedience to an order promulgated by a public servant (Section 188), adulteration (Section 272), sale of adulterated food (Section 273), or administration of poison with intent to harm (Section 328). The mere transport of banned products does not attract these offences. (Paras 7-8)
Issue of Consideration
Whether the order dated 15/7/2020 passed by the Food Safety Commissioner under Section 30(2)(a) of the Food Safety and Standards Act, 2006 prohibiting transport of banned products such as tobacco, Pan Masala, etc. from one State to another through the State of Maharashtra is unconstitutional and ultra vires, and whether the FIR registered for offences under FSSA and IPC is liable to be quashed.
Final Decision
The court allowed the petition in part. The order dated 15/7/2020 to the extent it prohibits transport of banned products from one State to another through the State of Maharashtra was held ultra vires and set aside. The FIR No.358/2020 was quashed. The rest of the order was upheld.
Law Points
- Section 30(2)(a) of Food Safety and Standards Act
- 2006 does not empower Commissioner to prohibit inter-State transport of banned products
- Section 26(2)(i) and (iv) of FSSA apply only to import
- manufacture
- storage
- distribution
- and sale
- not transport
- Section 188 IPC requires disobedience to an order promulgated by public servant
- Section 272 IPC requires adulteration
- Section 273 IPC requires sale of adulterated food
- Section 328 IPC requires administration of poison with intent to harm
Case Details
2021 LawText (BOM) (01) 93
Criminal Writ Petition No.543/2020
Sunil B. Shukre, Avinash G. Gharote
Mr. M.G. Bhangde, Sr. Advocate with Shri Ajay Somani for petitioners, Shri S.A. Ashirgade, Addl. P.P. for respondents
Mohammad Yamin Naeem Mohammad, Mohammad Jamshed Sakir Mohammad, Mohammad Sarfaras Sharif Mohammad, Gulshan Kumar s/o Sohna Ram Aneja
The State of Maharashtra, The Commissioner of Food Safety Food and Drugs Administration, Maharashtra State, The food & Safety Administration through Assistant Commissioner and designated officer (Food)
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Nature of Litigation
Criminal writ petition challenging an order under Section 30(2)(a) of FSSA prohibiting transport of banned products through Maharashtra and seeking quashing of FIR.
Remedy Sought
Petitioners sought to declare the order dated 15/7/2020 as unconstitutional and ultra vires to the extent it prohibits transport of banned products from one State to another through Maharashtra, and to quash FIR No.358/2020.
Filing Reason
The petitioners were transporting Vimal Pan Masala, Jarda, and scented tobacco from Gujarat to Odisha through Maharashtra when their truck was intercepted and an FIR was registered.
Issues
Whether the order under Section 30(2)(a) of FSSA prohibiting inter-State transport of banned products through Maharashtra is ultra vires?
Whether the FIR under Sections 26(2)(i), 26(2)(iv), 26(3), 59 of FSSA and Sections 188, 272, 273, 328 IPC is liable to be quashed?
Submissions/Arguments
Petitioners argued that Section 30(2)(a) does not empower the Commissioner to prohibit transport through the State, only manufacture, storage, distribution, sale, or import within the State.
Petitioners argued that they were merely transporting goods from Gujarat to Odisha with valid documents, not importing, manufacturing, storing, distributing, or selling within Maharashtra.
Respondents argued that the order was valid and the FIR disclosed offences under FSSA and IPC.
Ratio Decidendi
Section 30(2)(a) of the Food Safety and Standards Act, 2006 empowers the Commissioner to prohibit manufacture, storage, distribution, sale, or import of any food article within the State, but does not extend to prohibiting transport through the State. Therefore, an order prohibiting inter-State transport of banned products through the State is ultra vires. Further, the offences under Sections 26(2)(i), 26(2)(iv), 26(3), 59 of FSSA and Sections 188, 272, 273, 328 IPC are not attracted when the accused are merely transporting goods through the State with valid documents, without any import, manufacture, storage, distribution, or sale within the State.
Judgment Excerpts
The present petition challenges the order dated 15/7/2020 (Annexure -8) issued by the respondent no.2, the Food Safety Commissioner, Food and Drugs Administration, Maharashtra State, passed under Section 30 (2) (a) of the Food Safety and Standards Act, 2006 to the extent it prohibits transport of banned products such as tobacco, Pan Masala, etc. from one State to another through the State of Maharashtra, as being unconstitutional and ultra vires, the powers of the said authority under the FSSA.
The admitted position on record is that the petitioner no.1 is the driver, petitioner no.2 is the cleaner and petitioner no.3 is the owner of the truck bearing registration No.UP-21-CN-2323, whereas the petitioner no.4 is the transporter. The petitioners undertook to transport four consignments booked by M/s. Vishnu Pan Products, Kakadkopar, Vapi-Dharampur Road, Valsad, Gujarat to Sumati Traders, Joda (Odisha) and Santosh Traders at Post Khalari, Angul, Odisha (Orissa). The consignments contained Vimal Pan Masala, Jarda and scented tobacco and were to be transported from Valsad in the State of Gujarat to Joda in the State of Orissa, under the cover of invoices, e-way bills and lorry receipts (collectively at Annexure-2).
Procedural History
The petitioners filed Criminal Writ Petition No.543/2020 before the High Court of Judicature at Bombay, Nagpur Bench, challenging the order dated 15/7/2020 and seeking quashing of FIR No.358/2020. The court reserved judgment on 03/12/2020 and pronounced it on 09/01/2021.
Acts & Sections
- Food Safety and Standards Act, 2006: Section 30(2)(a), Section 26(2)(i), Section 26(2)(iv), Section 26(3), Section 59
- Indian Penal Code, 1860: Section 188, Section 272, Section 273, Section 328
