Offenders can be prosecuted under two different laws: SC

A person can be prosecuted for an act or omission constituting an offence under two different laws but cannot be sentenced twice for the same offence, the Supreme Court has said.

The court said Maharashtra Police can initiate criminal action under IPC for transportation, stocking and sale of 'Gutka' or Pan Masala, which are offences also punishable under the Food and Safety Standards (FSS) Act.

"Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence," a bench of Justices S A Bobde and L Nageswara Rao said.

The bench was hearing an appeal of the Maharashtra government challenging the Bombay High Court order which had said that a person can be held liable for offences of transportation, stocking and sale of Gutka or Pan Masala under the FSS Act and not the Indian Penal Code (IPC).

"A perusal of the provisions of the FSS Act would make it clear that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties. We, therefore, set aside the finding of the High Court on the first point," the bench said on Thursday.

It said there was no dispute that section 55 of the FSS Act provides only for penalty to be imposed for non compliance of the requirements of the Act, Rules or Regulations or orders issued by the Food Safety Officer.

"There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence," the top court said.

The court said that it does not agree with the conclusion of the High Court that non compliance of the provisions of the Act, Rules or Regulations or orders cannot be subject matter of a prosecution under IPC unless expressly or impliedly barred.

The top court said that the High Court committed an error while interpreting the scope of section 188 of the IPC which relates to disobedience to order duly promulgated by public servant.

"Section 188 of the IPC does not only cover breach of law and order, the disobedience of which is punishable. Section 188 is attracted even in cases where the act complained of causes or tends to cause danger to human life, health or safety as well," the court said.

The bench added that it cannot agree with the findings of the high court that the prohibitory order of the Commissioner, Food and Safety is not an order contemplated under the IPC and the provisions of the FSS Act can only be resorted for non compliance of orders passed under the FSS Act as it is a special enactment.

"An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law. The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897...," it said.

The top court remanded back the matter to the high court for adjudicating the point whether the offences under IPC are made out against the alleged offenders of the rule.

It, however, said that till the adjudication of petitions of stockists of Gutka and Pan Masala, no coercive action should be initiated.

The case pertains to FIR registered in Maharashtra for transportation, sale and stocking of Pan Masala, Gutka in contravention to the provisions of the FSS Act.

The stockists moved the high court seeking quashing of FIR on the ground that action can only be initiated against them under the FSS Act and not IPC.

The high court quashed the criminal proceedings against them and declared that the Food Safety Officers can proceed against the stockists and sellers of Gutka and Pan Masala under the provisions of the FSS Act only.