Sections 78 and 79 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 78 of the Food Safety and Standards Act, 2006 lets a court that is trying a person who is not the importer, manufacturer, distributor or dealer add that importer, manufacturer, distributor or dealer to the case if the evidence shows he is also concerned with the offence. Section 79 gives the court of ordinary jurisdiction power to pass any sentence the Act authorises, even beyond the Magistrate's usual limits, except imprisonment exceeding six years in excess of those limits.
Section 78: during a trial, if the court is satisfied on the evidence that an importer, manufacturer, distributor or dealer (who is not the accused before it) is also concerned with the offence, it may proceed against him as though a prosecution had been instituted under the Act. This applies notwithstanding section 319(3) of the Code of Criminal Procedure, 1973 and section 71 of the Act. Section 79: the court of ordinary jurisdiction may pass any sentence authorised by the Act, notwithstanding section 29 of the Code, except a sentence of imprisonment exceeding six years in excess of his powers under that section.
The two sections at a glance
| Section | Who or what | Condition | Effect |
|---|---|---|---|
| 78 | Importer, manufacturer, distributor or dealer not originally accused | Court satisfied on evidence adduced that he is also concerned with the offence | Court may proceed against him as if prosecution were instituted under the Act |
| 79 | Court of ordinary jurisdiction | Sentence authorised by the Act | May pass it despite the Code's limit, except imprisonment exceeding six years in excess of his powers |
Section 78: adding the real source of the problem
The text
"Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the importer, manufacturer, distributor or dealer of any article of food, the court, is satisfied, on the evidence adduced before it, that such importer, manufacturer, distributor or dealer is also concerned with that offence, then the court may, notwithstanding anything contained in sub-section (3) of section 319 of the Code of Criminal Procedure, 1973 (2 of 1974), or in section 71 of this Act, proceed against him as though a prosecution has been instituted under this Act."
What it does
Food cases often start at the retail end: an FSO samples food from a shop, and the shopkeeper is prosecuted. The real fault may lie upstream. Section 78 lets the court bring the upstream party into the same trial without a fresh complaint.
The conditions in the text are:
- A trial is under way for an offence under the Act.
- The accused is not the importer, manufacturer, distributor or dealer. In the usual pattern, the accused is a retailer, restaurant or similar seller.
- Evidence is before the court. The court must be "satisfied, on the evidence adduced before it", not merely on suspicion.
- The upstream party is "also concerned" with the offence.
If those are met, the court "may" proceed against him, which is discretionary, "as though a prosecution has been instituted under this Act".
The notwithstanding clause
The power operates despite sub-section (3) of section 319 of the Code of Criminal Procedure, 1973, and despite "section 71 of this Act". The Code has been replaced from 1 July 2024 by the Bharatiya Nagarik Suraksha Sanhita, 2023, and the reference is now read as a reference to the new law. This article does not give the new section number. The section 71 reference in the Act's text deals with the Tribunal's procedure, and the text does not explain it further here.
Connection with section 27 and the guarantee
The manufacturer's and distributor's responsibilities for the food they supply are set out in section 27 (see responsibilities of a food manufacturer). A seller who buys with a written guarantee and sells in the same condition has a defence under section 80(B) (see defences in prosecution), and section 78 is the way the court can turn to the supplier.
Example. A shopkeeper is prosecuted for selling a packaged food that an analysis report shows to be unsafe. During the trial, the shopkeeper produces the invoice and the evidence shows the manufacturer supplied the batch. The court, satisfied on that evidence that the manufacturer is also concerned with the offence, may proceed against the manufacturer under section 78.
For a manufacturer or distributor, the lesson is that a retail prosecution in another city can become your prosecution. Keeping batch and dispatch records helps you answer. A penalty and adjudication review can help you prepare if you are impleaded.
Section 79: enhanced sentencing power
The text
"Notwithstanding anything contained in section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for the court of ordinary jurisdiction to pass any sentence authorised by this Act, except a sentence of imprisonment for a term exceeding six years in excess of his powers under the said section."
What it does
Under the criminal procedure law, a Magistrate's sentencing power has a ceiling depending on the class of court. Section 79 lifts that ceiling for offences under this Act: the court of ordinary jurisdiction can pass "any sentence authorised by this Act". The exception is that the sentence cannot be imprisonment exceeding six years "in excess of his powers" under the Code.
The wording is compressed, and this article does not attempt a numeric calculation. The safe reading is that the court may go beyond its normal sentencing powers to give effect to the Act's penalties, but not by more than six years of imprisonment beyond those normal powers. The Code's sentencing section (section 29 of the 1973 Code) is now read with the new procedural law.
Link with the trial sections
Summary trial under section 73 caps imprisonment at one year (see civil court barred and summary trial). Special Courts under section 74 handle the offences of grievous injury or death with imprisonment of more than three years (see special courts and transfer of cases). Section 79 addresses the separate question of how much a court of ordinary jurisdiction may sentence when the Act authorises it.
After the Jan Vishwas (Amendment of Provisions) Act, 2023, the Act's imprisonment provisions are reduced: section 59(i) carries up to three months and Rs 3 lakh, and sections 61 and 63 are penalties (Rs 10 lakh) rather than imprisonment.
Need help if you are a supplier in a prosecution?
If a retailer's case has named your product, or you are a retailer trying to show that the fault lies upstream, TaxClue can help with records and replies. See our penalty and adjudication support.
Key takeaways
- Section 78 lets a court add the importer, manufacturer, distributor or dealer to a trial on evidence that he is also concerned with the offence.
- It operates notwithstanding section 319(3) of the 1973 Code and section 71 of the Act.
- Section 79 lets the court of ordinary jurisdiction pass any sentence the Act authorises, except imprisonment exceeding six years in excess of its normal powers.
- Keep batch, invoice and dispatch records to answer upstream or downstream claims.
- References to the 1973 Code are now read as the BNSS, 2023.
Read next
- Sections 76 and 77: appeal and time limit for prosecutions
- Section 80: defences in prosecution
- Selling adulterated food: penalty and prosecution
- Responsibilities of a food manufacturer under the FSS Act
Disclaimer: Based on the Food Safety and Standards Act, 2006 as enacted, read with the Jan Vishwas (Amendment of Provisions) Act, 2023 where it applies (ss.59, 61 and 63 only; ss.78 and 79 are unchanged). Verify current notifications, regulations and FSSAI orders before acting.