Menace Of Supplying Adulterated Food From Restaurants Pose A Threat To Life: Kerala HC Rejects Anticipatory Bail Plea By Hotelier

The accused, who operates the Le Hayath Restaurant, filed applications under Section 438 of the Code of Criminal Procedure, 1973, seeking pre-arrest bail in connection with three criminal cases. The charges pertained to offenses under Sections 284 and 308 of the Indian Penal Code (IPC).

A Bench of Justice Mohammed Nias C.P. held, “The menace of supplying adulterated food from restaurants can lead to various health issues, including food-borne illnesses, allergies and long term health issues, besides resulting in food poisoning, digestive problems and in severe cases, pose a threat to life itself. Under such circumstances, I am not inclined to grant anticipatory bail to the petitioner.”

Advocate T. Asaf Ali appeared for the Petitioner and Advocate T.V. Neema appeared for the Respondents.

The prosecution alleged that the petitioner was knowingly selling 'shawarma,' which caused the death of a person and affected others with food poisoning.

The petitioner's defense emphasized the restaurant's adherence to hygiene standards and the absence of previous complaints.

The Court considered the arguments presented by both parties. The Court rejected the petitioner's claims that consumers might have violated warnings and that only Section 284 of the IPC is applicable. It affirmed the inclusion of Section 304 IPC, stating that the petitioner had knowledge that supplying food in violation of guidelines for illegal gain could cause death or injury.

The Court also dismissed the petitioner's contention that, after the enactment of the Food Safety and Standards Act (FSS Act), an offense under the IPC was not tenable. Citing the Supreme Court's decision in State of Maharashtra v. Sayyed Hassan Sayyed Subhan [2018 (4) KLT OnLine 3044 (SC)], the Court emphasized that non-compliance with FSS Act provisions does not bar prosecution under the IPC.

The Court further clarified that there is no legal impediment to trying or convicting an offender under two different enactments, with the bar applying only to double punishment. The Court rejected the petitioner's argument on the maintainability of IPC prosecution under the FSS Act and declared that previous decisions cited by the petitioner were irrelevant.

Additionally, the Court criticized a Gauhati High Court judgment suggesting limitations on police jurisdiction under the FSS Act as a misstatement of the law.

The Court explained, “The expression 'same offence' appearing in S.300 Cr.P.C. read with Art.20(2) of the Constitution of India means that the offence for which the accused has been tried and the offence for which he is again being tried must be identical. The subsequent trial is barred only if the ingredients of the two offences are identical and not when they are different, even though they may have resulted from the commission or omission arising out of the same set of facts.”

It underscored the need for a thorough investigation due to the seriousness of the allegations involving the supply of adulterated food, highlighting potential health risks. The Court added, “taking into account the prosecution allegations and the violation of the mandatory guidelines issued to the hotels, a proper investigation has to be conducted, and the grant of anticipatory bail will adversely affect the same.”

Consequently, the Court denied anticipatory bail to the petitioner, emphasizing the potential harm posed by the distribution of contaminated food, and dismissed the applications.

Cause Title: Shihad .M.P v. State of Kerala & Anr., [2023/KER/75015]