Allahabad High Court quashes IPC sections in case against fake pan masala makers
The Allahabad High Court has said that the sections of the Indian Penal Code relating to offences provided in the Special Act shall not be deemed to be effective. The Court said the concerned offence should be tried only under the Special Act.
A Single Bench of Justice Sadhna Rani (Thakur) heard this petition filed by Santosh Sahgal.
As per the facts of the case, an FIR was registered against unknown persons manufacturing fake pan masala and selling the same at half the rate of the original, which resulted in a loss to the State exchequer, hence an action be taken against them.
During investigation, the police apprehended three persons, one from outside the unit, and the other two from inside the unit manufacturing, where the said fake pan masala with various branded empty pouches and raw material manufacturing pan masala etc were found.
The Court noted,
The accused is said to have apprehended from outside the manufacturing place, sitting in a car and from the car also some incriminatory material is said to have been found. Order dated 27.10.2021 the coordinate bench of the Court enlarged the accused on bail in the same case under Sections 420, 467, 468, 471 IPC and Section 63 of CopyRight Act, 1957.
Later on, Sections 272 and 419 IPC were also added. The trial court took cognizance against all the accused persons including the present one in the added Sections 419 and 272 IPC also.
The Court observed that it appears from the record that since the charge sheet was filed in the court, the accused remained absent and after summons, then bailable warrants and at last, non-bailable warrants were issued against the accused vide order dated 19.04.2022. The co-accused, Amit Dixit, is said to have been bailed out in the added Sections 419 and 272 IPC also ordered dated 04.03.2022 of the court.
By means of the application under Section 482 CrPC, the counsel for the applicant seeks to invoke the inherent jurisdiction of the Court by staying the further proceedings in the case pending before the Chief Metropolitan Magistrate, Kanpur Nagar in relation to Case Crime registered at Police Station Chakeri, District Kanpur Nagar under Sections 420, 419, 467, 468, 471, 272 IPC and Section 63 of CopyRight Act, 1957 and the prayer is also made not to arrest the applicant during trial.
In support of this application, an affidavit has been filed wherein the prayer of quashing the entire proceedings in relation to additional Sections 272 and 419 IPC in the same case is also made.
The Court further noted,
Thus, it is clear that in his entire application and affidavit, the applicant has not made any prayer to quash the proceedings under Sections 420, 467, 468, 471 IPC and Section 63 of CopyRight Act, 1957.
So far as Section 272 IPC is concerned, it is argued by the counsel for the applicant that after coming into force of the Food Safety and Standard Act, Sections 272 and 273 IPC with regard to adulteration cases have become redundant. So the charge sheet, cognizance order of all the proceedings under these sections against the applicant are not maintainable.
The counsel for the applicant has drawn the attention of the court towards Sections 5 of CrPC, which is apposite to mention here:-
‘5. Saving. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.’
The counsel for the applicant has also drawn the attention of the court towards the judgement of the Apex Court in M/s Pepsico India Holdings (Pvt) Limited and another Vs State of UP and others, 2010 SCC OnLine All 1708 wherein it is observed that nothing in the penal code shall affect the provisions of any Special Act and when for any act or omission in a particular subject, a special set of rules have been framed, in that situation the provisions of the IPC have to be ignored or overlooked.
On the basis of this observation, it is argued that in the case the charge sheet has been filed under Section 272 IPC pursuant to the impugned government order, although adulteration of food stuff is covered by Special Act i.e The Food Safety and Standards Act, 2006.
The Court said,
In the case in hand, there is a dispute regarding adulteration of pan masala, which is an edible item. It is clear that the charge sheet under Section 272 IPC has been filed against the above legal proposition. In the case of adulteration regarding edible items, it is the designated officer who is entitled to investigate such matters under Food Safety and Standards Act, 2006. Sections 41 and 42 of the Act provide power of search, investigation, prosecution and procedure thereof and the procedure of launching any prosecution also.
Thus, in the light of above judgements the charge sheet filed under Section 272 IPC against the applicant and consequently the cognizance order and the whole proceedings under Section 272 IPC are liable to be quashed.
As per this section, a person can be said to cheat someone by pretending himself to be some other person or by knowingly substituting one person for another or representing that he or any other person is a person other than he or such other person really is.
As this is a simple case of preparing fake pan masala and using fake wrappers to be genuine branded wrappers, there is no allegation of cheating by personation in the first information report. Thus, in my opinion the case under Section 419 I.P.C can also be said to be not made out against the applicant.
Thus, the charge sheet, cognizance order and the whole proceedings with regard to Sections 272 and 419 IPC in the case are liable to be quashed. Consequently, the charge sheet dated 29.08.2021 in Case Crime above and the cognizance order dated 26.11.2021 and the entire proceedings with respect to Sections 272 and 419 IPC against applicant Santosh Sahgal are quashed.
‘So far as the other sections are concerned, though, the arguments were made regarding quashing of the proceedings under sections 420, 467, 468, 471 IPC and Section 63 of CopyRight Act, 1957 also but as no prayer regarding quashing of charge sheet, cognizance order or entire proceedings regarding these sections is made by the applicant so there is no need to discuss the allegations regarding these sections.
So far as the prayer regarding quashing of Non-Bailable Warrants dated 19.04.2022 and 10.04.2022 against the applicant are concerned, the jurisdiction of recalling or cancelling the warrant rests with the trial court. In this regard, the prayer of the applicant is rejected, otherwise also in the rest Sections i.e 420, 467, 468, 471 IPC and Section 63 CopyRight Act, 1957 the applicant has been bailed out by the Court order dated 27.10.2021.
As the application under Section 482 CrPC is being disposed of, so the question of staying further proceedings of the trial court in Case above during pendency of the criminal application does not arise.
The application under Section 482 CrPC is, thus, partly allowed,’ the order reads.