Report No.264

C. Certain words and expressions defined only in the Food Act

4.10 An article of food shall be deemed to be adulterated--- Section 3(1) (zz) of the Food Act defines when an article of food shall be deemed to be "unsafe food" -

'(zz) "unsafe food" means an article of food whose nature, substance or quality is so affected as to render it injurious to health:

(i) by the article itself, or its package thereof, which is composed, whether wholly or in part, of poisonous or deleterious substances; or

(ii) by the article consisting, wholly or in part, of any filthy, putrid, rotten, decomposed or diseased animal substance or vegetable substance; or

(iii) by virtue of its unhygienic processing or the presence in that article of any harmful substance; or

(iv) by the substitution of any inferior or cheaper substance whether wholly or in part; or

(v) by addition of a substance directly or as an ingredient which is not permitted; or

(vi) by the abstraction, wholly or in part, of any of its constituents; or

(vii) by the article being so coloured, flavoured or coated, powered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is; or

(viii) by the presence of any colouring matter or preservatives other than that specified in respect thereof; or

(ix) by the article having been infected or infested with worms, weevils or insects; or

(x) by virtue of its being prepared, packed or kept under insanitary conditions; or

(xi) by virtue of its being mis-branded or sub-standard or food containing extraneous matter; or

(xii) by virtue of containing pesticides and other contaminants in excess of quantities specified by regulations.'

4.11 The words "unwholesome" and "noxious" when used in relation to an article of food mean respectively that the article is harmful to health or repugnant to human use.

4.12 The necessity of highlighting this nexus between the repealed Prevention of Food Adulteration Act, 1954 (hereinafter referred to as PFA Act) and sections 272 & 273 of IPC is to bring forward the issue that the Food Act (which repeals the PFA Act), does not provide definitions for the above mentioned terms and instead defines the words 'adulterant'17 and 'unsafe food'18 which do not find any mention in Sections 272 and 273 of IPC.

4.13 The Supreme Court in the matter of Swami Achyutanand Tirth & Ors. (supra) while pronouncing its judgement refers to the interplay of section 59 of the Food Act and sections 272 & 273 of the IPC. It refers to the judgement passed by the High Court of Judicature at Allahabad in the matter of M/s Pepsico India Holdings (Pvt) Ltd. & Anr.v. State of U.P. & Ors.19 wherein the Court stated that invoking of sections 272 & 273 of IPC in relation to adulteration of food was considered to be unjustified as the authorities could have taken action only under the Food Act.

However, the Supreme Court decided not to go into the said question at this stage and delisted the appeals preferred by the State of U.P in the above mentioned matter (Criminal Appeals No. 476-478 of 2012) which are pending and thus the matter is sub judice.20

4.14 In the matter of M/s Pepsico India Holdings (Pvt) Ltd. & Anr.(supra), petitioners therein questioned the validity of the Orders issued by the State Government directing the police to register cases and initiate action under Sections 272/273 IPC inter alia on the grounds;

(i) The authorities had chosen to invoke Sections 272/ 273 IPC without even waiting for the report of the public analyst. Since the alleged offence as disclosed in the FIR are covered under the provisions of Food Act and as such there cannot be any violation of sections 272/273 IPC, and

(ii) There are certain ingredients which are required for constituting an offence under Section 272 IPC. Similarly Section 273 requires certain ingredients to be fulfilled before the offence of adulteration can be said to be made. The ingredients are, 'that somebody selling food article or drinks which has been rendered noxious/ unfit for consumption', with such knowledge or having reasons to believe that the same is a noxious food item. To put it differently, Sections 272/273 IPC are only attracted if it is shown that the adulteration is deliberate, intentional or with knowledge.

(iii) A special law prevails over general law. Provisions of PFA Act, 1954 on coming into force eclipsed the provisions of Sections 272 & 273 IPC.

(iv) The Food Act, repealed the PFA Act and occupied the entire field in respect of adulteration of food and drinks for sale. The Food Act, provisions would operate and provisions of Sections 272 & 273 were not attracted, and

(v) There was nothing on record to show that food material, seized, was meant for sale, rather a board "not for sale" had been put there.