The Kerala High Court denied anticipatory bail to the owner of 'Le Hayath Restaurant' following allegations of causing a customer's death due to serving adulterated and inedible 'shawarma'.
Considering the gravity of the accusations brought forth by the prosecution and the disregard for mandatory hotel guidelines, Justice Mohammed Nias C.P. emphasized the necessity for a thorough investigation into the matter.
The prosecution alleged that the accused, who operates the hotel, knowingly prepared and sold shawarma that was adulterated and unfit for consumption. This particular order was placed through the 'Zomato' food delivery app by the de facto complainant's brother. Following the consumption of this food, the consumer experienced severe physical ailments, leading to hospitalization and ultimately, their demise.
Advocates Asaf Ali and Laliza T.Y. presented the petitioner's case, asserting that the hotel maintained high hygiene standards. They highlighted that among the 150 shawarmas sold that day, no other complaints had been reported. The counsel emphasized that the deceased was hospitalized four days post consuming the food, displaying signs of severe septicemia and multi-organ dysfunction. This led them to argue that if the food had indeed been adulterated or contaminated, other patrons consuming food from the same hotel would have shown similar symptoms, which was not the case in this instance.
The defense further argued that even if the allegations made by the prosecution were considered, they would only align with Section 284 of the IPC ('Negligent conduct with respect to poisonous substance'), not Section 308 IPC ('Attempt to commit culpable homicide'). This argument was based on the assertion that Section 89 of the Food Safety and Standards Act, 2006 ('FSS Act') excludes the application of the IPC concerning acts covered under the FSS Act. Consequently, the counsel contended that the prosecution under the IPC would not be relevant, and the punishment specified under the FSS Act should be applicable instead.
The Court, after observing that individuals who consumed food from the hotel, whether through the app or by dining in, experienced food poisoning, dismissed the petitioner's argument suggesting that the deceased might have consumed the food beyond the recommended time limit indicated on the bill, which advised consuming the food within two hours of preparation.
The Court dismissed the assertion that only Section 284 IPC would apply, stating that Section 304 IPC was relevant in this case. It reasoned that Section 304 IPC was applicable as it was introduced following the demise of the individual who consumed food from the hotel. The court deemed this provision applicable based on the prosecution's claim that the petitioner was aware that supplying food in violation of guidelines could potentially result in death or injury.
Regarding the argument that the petitioner could solely face prosecution under the FSS Act and not under the IPC, the Court concluded that there was no prohibition against conducting a trial or convicting an offender under two distinct enactments. However, it emphasized that despite potential prosecution under multiple laws, the offender could only face punishment once.
The Court elaborated that the term 'same offence' within Section 300 Cr.P.C. alongside Art. 20(2) of the Indian Constitution signified that the offence for which the accused was initially tried and the subsequent offence for which they are being tried again must be identical in nature.
Case Title: Shihad M.P. v. State of Kerala & Anr.
Case Number: BAIL APPL. NO. 10350 OF 2023
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