SURESH CHNAD GARG AND ORS. vs RAJ KUMAR GUPTA AND ORS.
- Court
- Jammu and Kashmir High Court
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 28.04.2026
Pronounced on:. 08.05.2026
Uploaded on: 08.05.2026
Whether the operative part or full judgment
is pronounced: Full judgment
CRMC No. 86/2011
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CRMC No. 85/2011
CRMC No. 86/2011
1. Suresh Chand Garg, Aged 65
years S/o Late Sh. Dau Daual
Garg, Chairman-cum-Managing
Director Tapan Milk Products
Tapan House, 1-2, Kusam Vihar,
Mauza Jaganpur Bela, Dayal Bagh
Agra-282005 (Uttar Pradesh)
2. Tapan Milk Products, Tapan
House 1-2, Kusam Vihar, Mauza
Jaganpur Bela Dayal Bagh, Agra-
282005 (Uttar Pradesh)
3. Tapan Marketing and Sales
Sector-2, Channi Himmat, Jammu
through its Depot Manager.
…..Appellant(s)/Petitioner(s)
Through: Mr. Rahul Pant, Sr. Advocate with
Mr. Dhruv Pant, Advocate
Vs
1. Anil Gupta S/o Sh. Ram Lal
Proprietor, United Agency Poonch
Road Manda Tehsil Akhnoor
District Jammu.
2. Abhishek Mahajan S/o Anup
Gupta C/o United Agency Poonch
Road Manda Tehsil Akhnoor
District Jammu.
3. State of Jammu and Kashmir
through Food Inspector (H.Q.
Jammu Division) Sh. Pankaj Soni
C/o Office of Deputy Controller
Drugs and Food Control
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Organization Jammu Division.
.…. Respondent(s)
Through: Mr. Raman Sharma, AAG with
Ms. Saliqa Sheikh, Advocate
CRMC No. 85/2011
...Appellant(s)/Petitioner(s)
1. Suresh Chand Garg,
Aged 65 years S/o Late
Sh. Dau Daual Garg,
Chairman-cum-
Managing Director
Tapan Milk Products
Tapan House, 1-2,
Kusam Vihar, Mauza
Jaganpur Bela, Dayal
Bagh Agra-282005
(Uttar Pradesh)
2. Tapan Milk Products,
Tapan House 1-2,
Kusam Vihar, Mauza
Jaganpur Bela Dayal
Bagh, Agra-282005
(Uttar Pradesh)
3. Tapan Marketing and
Sales Sector-2, Channi
Himmat, Jammu
through its Depot
Manager.
Through: Mr. Rahul Pant, Sr. Advocate with
Mr. Dhruv Pant, Advocate
Vs
1. Raj Kumar Gupta S/o
.…. Respondent(s)
Late Sh. Dev Raj Gupta
R/o 64/2, Sanjay Nagar,
Jammu.
2. Sonu Gupta S/o Late Sh.
Janak Raj Gupta R/o 64/2,
Sanjay Nagar, Jammu.
3. State of Jammu and
Kashmir through Food
Inspector Block
SohanjanaAt Present
Manzoor Ahmed C/o
Office of Block Medical
Officer, Sohanjana,
Jammu.
Through: Mr. Raman Sharma, AAG with
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Ms. Saliqa Sheikh, Advocate
Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
CRMC No. 86/2011
1. This petition has been filed for quashing the proceedings of the
complaint titled, ‘State Through Food Inspector vs. Tapan Milk
Products and ors.’ , pending before the court of learned Special Judicial
Mobile Magistrate (Excise), Jammu (for short ‘the trial court’) , filed
by respondent No. 3 against the petitioners and respondent Nos. 1 and 2
for commission of offences under Section 7(i), 7(ii) and 7(v) of
Prevention of Food Adulteration Act, 1954 ( for short ‘the Act of 1954)
and also order dated 29.01.2011 passed by the learned trial court,
whereby the learned trial court after taking cognizance of the offences,
has issued process against petitioners and respondent Nos. 1 and 2 for
commission of offences under Section 7(i), 7(ii) and 7(v) of Act of
1954.
2. It is contended by the petitioners that the learned trial court has not
realised that the Act of 1954 stood repealed and replaced by a new Act
i.e. Food Safety and Standards Act (FSSA), 2006 (for short ‘the Act of
2006’) when the offence was allegedly committed on 01.12.2010. It is
stated that the Government of India from time to time issued different
notifications for enforcing the different provisions of the Act and
finally the complete Act of 2006 was brought in force by the
Government of India vide notification dated 29.07.2010.
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3. Mr. Rahul Pant, learned Senior Counsel for the petitioners has
submitted that in view of Section 89 of the Act of 2006, the
proceedings initiated by respondent No. 3 were misconceived, as the
Act of 1954 was not in operation at the time when the offences were
allegedly committed by the petitioners and other accused.
4. Mr. Raman Sharma, learned AAG has submitted that in view of Section
97 of the Act of 2006, the prosecution of the petitioners can be initiated
and continued under the Act of 1954, as the Act of 1954 as mentioned
in Second Schedule of Act of 2006, was repealed only on 05.08.2011
i.e. after the commission of offences by the petitioners and other
accused.
5. Heard learned counsel for the parties and perused the record.
6. A perusal of the complaint depicts that the allegations have been
levelled against the petitioners and respondent Nos. 1 and 2 for
commission of offences under Section 7(i), 7(ii) and 7(v) punishable
under Section 16 of Act of 1954 on the ground that the samples of
„Deep Classic Mild Fat‟ taken from the premises of respondent No. 1
were found to be „adulterated‟ as after analysis it was found that it
contained natural identical flavouring substances, not allowed as per
PFA Rules. It was also alleged that the sample was an admixture of
milk fat and hydrogenated and un-hydrogenated edible vegetable fat,
which again was violation of PFA Rules. It was also alleged that the
words “Mild Fat” mean low cholesterol displayed in the article of food
offered for sale, was violative of PFA Rules, as such, the sample was
also declared as „misbranded‟.
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7. In terms of Section 89 of the Act of 2006, the provisions of the Act of
2006 shall have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force or in any
instrument having effect by virtue of any law other than the Act of
2006, meaning thereby that the Act of 2006 shall prevail for any other
law for the time being in force in case of any consistency between
them. Section 89 of the Act of 2006 admittedly came into effect vide
notification dated 29.07.2010.
8. The issue is whether the Act of 2006 includes provisions that cover the
specific offences alleged against the petitioners and respondent Nos. 1
and 2.
9. The first offence for which the petitioners are being prosecuted
involves adulterated food as defined by Section 7(i) of the Act of 1954.
Specifically, the sample was found to be 'adulterated' because it
contained natural identical flavouring substances that are impermissible
under the PFA Rules. Section 2(ia) of the Act of 1954, which defines
the expression “adulterated”, is reproduced as under:
“Section 2(ia) defines “adulterated” an article of food shall be
deemed to be adulterated—
(a) if the article sold by a vendor is not of the nature, substance or
quality demanded by the purchaser and is to his prejudice, or is
not of the nature, substance or quality which it purports or is
represented to be;
(b) if the article contains any other substance which affects, or if
the article is so processed as to affect, injuriously the nature,
substance or quality thereof;
(c) if any inferior or cheaper substance has been substituted
wholly or in part for the article so as to affect injuriously the
nature, substance or quality thereof;
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(d) if any constituent of the article has been wholly or in part
abstracted so as to affect injuriously the nature, substance or
quality thereof;
(e) if the article had been prepared, packed or kept under
insanitary conditions whereby it has become contaminated or
injurious to health;
(f) if the article consists wholly or in part of any filthy, putrid,
1[*], rotten, decomposed or diseased animal or vegetable
substance or is insect-infested or is otherwise unfit for human
consumption;
(g) if the article is obtained from a diseased animal;
(h) if the article contains any poisonous or other ingredient which
renders it injurious to health;
(i) if the container of the article is composed, whether wholly or
in part, of any poisonous or deleterious substance which renders
its contents injurious to health;
(j) if any colouring matter other than that prescribed in respect
thereof is present in the article, or if the amounts of the prescribed
colouring matter which is present in the article are not within the
prescribed limits of variability;
(k) if the article contains any prohibited preservative or permitted
preservative in excess of the prescribed limits;
(l) if the quality or purity of the article falls below the prescribed
standards or its constituents are present in quantities not within
the prescribed limits of variability, which renders it injurious to
health;
(m) If the quality or purity of the article falls below the prescribed
standards or its constituents are present in quantities not within
the prescribed limits of variability but which does not render it
injurious to health.
Provided that, where the quality or purity of the article, being
primary food, has fallen below the prescribed standards or its
constituents are present in quantities not within the prescribed
limits of variability, in either case, solely due to natural causes
and beyond the control of human agency, then, such article shall
not be deemed to be adulterated within the meaning of this sub-
clause.
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Explanation.—Where two or more articles of primary food are
mixed together and the resultant article of food—
(a) is stored, sold or distributed under a name which denotes the
ingredients thereof; and
(b) is not injurious to health,
then, such resultant article shall not be deemed to be adulterated
within the meaning of this clause.”
10. In the present case, the allegations regarding the 'adulterated' product
fall within the definition provided in Section 2(ia)(a) of the Act of
1954. In the opinion of this Court, this corresponds to a 'sub-standard'
product as defined under Section 3(1)(zx) of the 2006 Act. That
provision stipulates that food is deemed sub-standard, if it fails to meet
specified standards, yet not to the extent of rendering the article unsafe.
It is noted that the report of analyst no where provides that the product
is injurious to health.
11. The second allegation against the petitioners is that the sample contains
an admixture of milk fat with hydrogenated and un-hydrogenated
edible vegetable fats, in violation of the PFA Rules. This act constitutes
an offence under Section 7(v) of the Act of 1954 and would correspond
to the 'sub-standard' classification as defined in Section 3(i)(zx) of Act
of 2006.
12. The third allegation is for commission of offence under Section 7(ii) of
the Act of 1954 on the ground that the sample was „misbranded‟, as the
words “Mild Fat” mean low cholesterol displayed in the article of food
offered for sale, was violative of PFA Rules. Misbranded food in terms
of Section 2(ix) of Act of 1954 corresponds to misbranded food as
defined in Section 3 (i)(zf) of the Act of 2006.
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13. Section 51 of the Act of 2006 provides for the penalty for sub-standard
food, whereas Section 52 of the Act of 2006 provides penalty for
misbranded food. Thus, Sections 51 and 52 of the Act of 2006 were in
force w.e.f. 29.07.2010 and the date of commission of alleged offences
is 01.12.2010.
14. The contention of Mr. Raman Sharma, learned AAG is that in terms of
Section 97 of the Act, petitioners can be prosecuted, as Section 97 of
the Act of 2006 came in to effect w.e.f. 05.08.2011, which had the
effect of repealing of Act of 1954 w.e.f. 05.08.2011. The contention
raised by Mr. Sharma, learned AAG has already been adjudicated by
the Hon‟ble Supreme Court in case titled ‘Manik Hiru Jhangiani vs.
State of M.P.’ reported in 2023 INSC 1078 . In para Nos. 17 and 18 of
the judgment, Hon‟ble the Supreme Court has held as under:-
“17. In this case, on the day on which the alleged offence was
committed, the offender could have been sentenced to
imprisonment under Section 16 of the PFA and under the
FSSA, he could have been directed to pay the penalty up to
Rupees 3 lakhs. The punishment under PFA and the penalty
under the FSSA cannot be imposed on the violator for the
same misbranding because it will amount to double jeopardy,
which is prohibited under Article 20(2) of the Constitution of
India. Thus, when the penal action can be taken under both
statutes, the question is which will prevail. An answer to the
said question has been provided by Section 89 of the FSSA,
which reads thus:
“89. Overriding effect of this Act over all
other food related laws. – The provisions of this
Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law
for the time being in force or in any instrument
having effect by virtue of any law other than this
Act.”
18. The effect of Section 89 is that if there is an inconsistency
between the provisions of the PFA and the FSSA, the
provisions of the FSSA will have an overriding effect over the
provisions of the PFA. When it comes to the consequences of
misbranding, the same has been provided under both the
enactments, and there is inconsistency in the enactments as
regards the penal consequences of misbranding. As pointed
out earlier, one provides for imposing only a penalty in terms
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of payment of money, and the other provides imprisonment for
not less than six months. In view of the inconsistency, Section
89 of the FSSA will operate, and provisions of the FSSA will
prevail over the provisions of the PFA to the extent to which
the same are inconsistent. Thus, in a case where after coming
into force of Section 52 of the FSSA, if an act of misbranding
is committed by anyone, which is an offence punishable
under Section 16 of PFA and which attracts penalty under
Section 52 of the FSSA, Section 52 of the FSSA will override
the provisions of PFA. Therefore, in such a situation, in
view of the overriding effect given to the provisions of the
FSSA, the violator who indulges in misbranding cannot be
punished under the PFA and he will be liable to pay
penalty under the FSSA in accordance with Section 52
thereof .
(emphasis added)
15. In view of the law laid down by the Hon‟ble Supreme Court, Section
89 of the 2006 Act mandates that its provisions supersede the Act of
1954 in cases of overlapping jurisdiction. Since the allegations fall
within the ambit of Sections 51 and 52 of the FSSA, prosecution under
the Act of 1954 is legally impermissible. The respondents' contrary
contention is, therefore, found to be misconceived and rejected.
16. In view of what has been discussed hereinabove, this petition is
allowed. The proceedings in the complaint titled, ‘State Through Food
Inspector vs. Tapan Milk Products and ors.’ , pending before the court
of learned Special Judicial Mobile Magistrate (Excise), Jammu as also
the order passed by the learned trial court are quashed. The complaint
shall stand dismissed.
CRMC No. 85/2011
17. This petition has been filed for quashing the proceedings of the
complaint titled, ‘State Through Food Inspector vs. Tapan Milk
Products and ors.’ , pending before the court of learned Special Judicial
Mobile Magistrate (Excise), Jammu filed by respondent No. 3 against
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the petitioners and respondent Nos. 1 and 2 for commission of offences
under Section 7(ii) and 7(v) of Prevention of Food Adulteration Act,
1954 and also order dated 28.12.2010 passed by the learned trial court,
whereby the learned trial court after taking cognizance of the offences,
has issued process against petitioners and respondent Nos. 1 and 2 for
the aforesaid offences.
18. The issues involved in the present petition are identical in nature and
arise out of the same set of facts and circumstances as those considered
in CRMC No. 86/2011. Therefore, for the reasons recorded therein, the
present petition also deserves to be allowed. Accordingly, the
proceedings in the complaint titled, “ State Through Food Inspector vs.
Tapan Milk Products and others”, pending before the Court of learned
Special Judicial Mobile Magistrate (Excise), Jammu, along with all
consequential orders passed therein by the learned trial Court, are
quashed. Consequently, the complaint shall stand dismissed.
19. Disposed of.
(RAJNESH OSWAL)
JUDGE
Jammu
08.05.2026
Neha-II
Whether the order is speaking: Yes
Whether the order is reportable: Yes
NEHA KUMARI
2026.05.08 13:17
I attest to the accuracy and
integrity of this document
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