FOOD INSPECTOR v. CHAMU — 1978 DIGILAW 220 (KER)

Judgment :- 1. This is a revision taken up suo mote by the High Court. Notice was issued to the accused to show cause why the sentence imposed on him ought not to be enhanced and the accused, pursuant to the notice, has appeared through counsel. Counsel has been heard The accused was convicted of an offence under S.16(1)(a)(i) read with S.7(1) of the Prevention of Food Adulteration Act, 1954 and sentenced to undergo rigorous imprisonment for one month and to pay a fine of Rs 500/- and in default to undergo rigorous imprisonment for a further period of one month. This was by the Chief Judicial Magistrate, Kozhikode in C. C. 89 of 1976. The buffalo milk sold by the accused to the Food Inspector was found not to conform to the standards prescribed for buffalo milk under the Prevention of Food Adulteration Rules, 1955, The Public Analyst's report disclosed that the sample of milk contained only 5 percent milk fat and 7.6 percent milk solids-not-fat and as such did not conform to the standard. The accused appealed against the conviction. The learned Sessions Judge, Kozhikode confirmed the conviction, but modified the sentence. The sentence of rigorous imprisonment for one month was reduced to imprisonment till the rising of the court. The sentence of fine was maintained. It may also be mentioned that the sale of the buffalo milk to the Food Inspector was on 22 11976, prior to the commencement of the Prevention of Food Adulteration Amendment Act 34 of 1976. It is therefore, S.16 as it stood prior to the said amendment that applies to the case. 2. This court noticed, during the calendar revision of judgments, that the sentence in the case was below the minimum prescribed in S.16 (1) of the Act which provided that the substantive sentence of imprisonment shall not be less than six months. No circumstance calling for the application of the proviso to S.16 (1) was disclosed in the judgment of the Chief Judicial Magistrate and also that of the Sessions Judge. That is the reason why this court took up the matter in suo mote revision. It must be stated that this is not an isolated instance. There are a number of cases where the Magistrates trying offences under S.16 (1) (a) had imposed sentences below the minimum prescribed without showing proper justification for reducing the sentence below the minimum. That is the reason why this court took up the matter in suo mote revision. It must be stated that this is not an isolated instance. There are a number of cases where the Magistrates trying offences under S.16 (1) (a) had imposed sentences below the minimum prescribed without showing proper justification for reducing the sentence below the minimum. Counsel in some of those cases which came to the notice of this court were heard since a common question arose. 3. In the cases of offences under sub-clause (i) of clause (a) of S.16 with respect to an article of food which is adulterated under sub-clause (1) of Clause (i) of S.2 or misbranded under sub-clause (k) of clause (ix) of that Section the court is empowered to impose a sentence of imprisonment for a term of less than six months or a fine of less than Rs. 1,000/-or of both for adequate and special reasons to be mentioned in the judgment. That is the case also where the offence is one under sub-clause (ii) of clause (a) of S.16, I am referring to the section as it stood prior to the amendment by Act 34 of 1976. The position is slightly different after the amendment though even in such a case the scope and extent of the term "adequate and special reasons" may arise for consideration. 4. Since there has been rarely any application of the judicial mind to the question as to what constitutes adequate and special reasons by the subordinate courts trying Food Adulteration cases it is worthwhile to notice this question here. The main purpose of taking up these cases in revision on this court's initiative is to draw the attention of the subordinate courts to the impropriety of imposing sentences below the minimum as a matter of course on irrelevant considerations and out of misplaced sympathies. 5. That the article of food which is the subject of the charge here was adulterated, as understood under sub-clause (1) of clause (i) of S 2 of the Act has been found by both the courts. The offence is under sub-clause (i) of clause (a) of S 16. Hence the minimum sentence of 6 months provided under S 16 (1) could have been reduced further by the court only if the court found adequate and special reasons and also mentioned such reasons in the judgment of the court. The offence is under sub-clause (i) of clause (a) of S 16. Hence the minimum sentence of 6 months provided under S 16 (1) could have been reduced further by the court only if the court found adequate and special reasons and also mentioned such reasons in the judgment of the court. 6. The Chief Judicial Magistrate who tried the case said thus as such reason: "This being a sale of sub-standard milk the minimum sentence contemplated under the section need not be imposed. The accused is a petty milk vendor. I sentence the accused to undergo R.I. for a period of one month and to pay a fine of Rs. 500/-and in default of payment of fine to undergo R. I. for a further period of one month." It is very difficult to understand the statement of the Chief Judicial Magistrate that since the sale is of substandard milk the minimum sentence need not be imposed. This is a palpably erroneous statement. The other reason stated is that the accused is a'petty milk vendor' What the material before the Magistrate was, which justified finding that the accused was a petty milk vendor is not evident. That apart, merely because the accused is a petty milk vendor could that be said to be reason adequate and special to justify the imposition of a sentence below the minimum? Could it be taken as a rule of law that petty shop keepers and petty vendors are outside the purview of the minimum sentence to be imposed under S.16 (1) of the Act? The appellate judge has made an approach which is equally difficult to appreciate. The learned Sessions Judge observes: "I agree that the proviso to S.16(1) (a) (i) applies and the court has a discretion not to impose the minimum sentence. However the discretion must be exercised in a proper and judicious manner and not in an arbitrary way. The lower court accepts that the appellant is a petty milk vendor. That was the reason why a sentence less than the minimum sentence was imposed. If that be so, I da not see any justification to sentence him to undergo R. I. for a period of one month. Such a sentence in the instant case will serve no purpose. The lower court accepts that the appellant is a petty milk vendor. That was the reason why a sentence less than the minimum sentence was imposed. If that be so, I da not see any justification to sentence him to undergo R. I. for a period of one month. Such a sentence in the instant case will serve no purpose. It does not serve to correct the individual nor does it make an example of him nor is the Society in any way benefited. On the other hand it appears to me that such a short term sentence will destroy the social health of the individual and adversely affect the larger public good. In my opinion this is a fit case where the substantive sentence of imprisonment should be reduced to imprisonment till the rising of the Court." The learned judge failed to notice that in considering the sentence he bad necessarily a duty to see whether the sentence awarded by the court below was right and that called for interference by reduction. If the sentence was less severe than what ought to have been imposed he would have no justification to say that it ought to have been heavier but since a lesser sentence was imposed he would reduce it further. Sitting to hear the appeal as 'Sessions Judge' the least that he could have done was to maintain the sentence imposed on the accused. As to the purpose served by imprisonment even for a month the observation of the learned judge does not appear to be correct. Unlike in the matter of other offences in the case of an offence under the Prevention of Food Adulteration Act deterrence is the main object of punishment. It is not only to deter the accused from indulging in any such activity over again but also those members of the public who indulge in such practices. One has to view the offence under a statute such as the Prevention of Food Adulteration Act with an entirely different perspective from offences like assault and battery, theft and cheating under the Indian Penal Code Offences of the former class are directed against large number of gullible innocent unwitting victims while the latter immediately affect only those against whom they are directed. 7. Much has been spoken and much more written about the evil of Food Adulteration. 7. Much has been spoken and much more written about the evil of Food Adulteration. Even prior to the enactment of the Prevention of Food Adulteration Act, 1954 there were laws in many of the States intended to prevent the evil of adulteration and misbranding of food stuffs. For the last 25 years there has been concerted action against criminals who indulge in such practice by seeking to enforce the provisions of the Prevention of Food Adulteration Act, 1954. These criminals have been marked out from the rest of the offenders for more deterrent treatment. The law makers have, time and again, deliberated over measures to make enforcement of law against such offenders effective, if not fool proof. With this end in view the Prevention of Food Adulteration Act has been subjected to two major surgeries, one in 1964 and the other in 1976. Not only have -punishments been made more severe but the discretion of courts to choose the sentences within the permitted range, normally left to courts, has been drastically restricted by prescribing the minimum sentence to be imposed in such cases. Courts, quite often out of misplaced sympathies for such criminals, had been persuaded to impose light sentences and the logical sequence was more drastic and stringent provisions as to sentences to be imposed by courts. But in this process the law and particularly S.16 of the Act became too cumbersome and complicated. In practice this worked to the advantage of the rich and powerful offenders who are the real sources of the evil. They find it comparatively easy to keep out of the clutches of the law which despite its apparent honest purpose fails to provide a smooth machinery to get at such offenders effectively. The practical consequence of this situation is that petty shop keepers and small time vendors functioning at the distributing end are quite often caught by the law while the manufacturers and wholesale dealers carrying on objectionable large scale practice of adulteration are as immune as ever. This and the other cases in the batch I heard illustrate the plain truth that the dark evil at the source is rarely traced. The accused that have been called up to this Court are those at the distributing end. All of them plead that they are really unwitting parties to the offence of adulteration. This and the other cases in the batch I heard illustrate the plain truth that the dark evil at the source is rarely traced. The accused that have been called up to this Court are those at the distributing end. All of them plead that they are really unwitting parties to the offence of adulteration. They plead that they are petty vendors and shop keepers and in some cases the parties also plead that the adulterant being water added to milk it is not injurious to health and as such the cases should be considered with sympathy. Such pleas appear to have appealed to the court below as a consequence of which there has been a perverse application of the law in the matter of sentence by the courts in most of these cases. 8. What are adequate and special reasons within the meaning of that term in the proviso to S.16 (1) of the Act? Though there have been innumerable instances where the courts in India have applied the proviso there is very little discussion in most of these decisions on the scope and meaning of the term "adequate and special reasons". The decision of the Gujarat High Court reported in State of Gujarat and another v. Ramanlal Vithaldas (1975 (1) F.A C. 125) has made a rather exhaustive consideration of the scope of the term "special reasons". To that decision I will advert presently 9. Though the meaning of the game or similar expressions found in other statutes may not always be useful to determine the meaning of a term in an enactment it would certainly serve as a useful guide if the expression appears in such other statute in similar context. The term "special reasons" has come up for construction on several occasions before the English Courts. That term appears in S.15 (2) of the Road Traffic Act 1930 since repealed and replaced by the Road Traffic Act of 1962 in S.5 of which the same term occurs. The relevant provision of the Act required that conviction for driving under the influence of drink should entail the consequence of cancellation of licence and disqualification from driving unless, for special reasons, the court thought it fit to order otherwise. R. v. Crossan (1939 Law Reporter (Northern Ireland) 106 has been cited time and again by courts as stating the law on this point rightly. R. v. Crossan (1939 Law Reporter (Northern Ireland) 106 has been cited time and again by courts as stating the law on this point rightly. Andrews C. J. said thus (at page 112 of the report): "A 'special reason' within the exception is one which is special to the facts of the particular case, that is, special to the facts which constitute the offence. It is, in other words, a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the court ought properly to take into consideration when imposing punishment." Though this statement of the law has been cited quite often not only by the courts in England but even outside that country I may say that it has not been substantially improved upon. Learned Chief Justice Lord Goddard in a later case Whittal v. Kirby (1946 (2) All. E. R.552) quoted this passage and observed that the King's Bench Division in R. v. Crossan, 1939 N. I.106 was giving expression to the idea expressed by him in an address that he gave to the Magistrates assembled at the Summer Assizss for Essex in 1937. The learned judge further observed: "I suggested that the reasons must be special to the offence, and not to the offender, and the court in adopting what I had said used these words." and after quoting the passage to which I have already adverted the learned judge observed that he respectfully and entirely agreed with and adopted the said passage in R. v. Crossan. The learned Chief justice further illustrates this thus: "While it is impossible to enumerate or define everything that can amount to a special reason, one may give as an illustration a driver exceeding the speed limit because he has suddenly been called to attend a dying relative or a doctor going to an urgent call. It is difficult indeed to visualise any special reason in the case of dangerous driving, except the one actually mentioned in the section itself namely, the lapse of time from the date of previous conviction. It is difficult indeed to visualise any special reason in the case of dangerous driving, except the one actually mentioned in the section itself namely, the lapse of time from the date of previous conviction. So, it is certainly difficult to visualise what could amount to a special reason in the case of driving under the influence of drink or drugs, though perhaps one might be found if the court was satisfied that a drug had been administered to a driver without his knowledge, as for instance where a driver had taken a dose of medicine which he believed to be an ordinary tonic but which in fact contained a powerful drug." A plea was made before the Court in Rennison v. Knowler (1947 (1) All. E.R. 302) that a driver of a motor cycle should not be disqualified for causing a motor bicycle to be used on a road without a policy of insurance being in force because of the special reason that the driver honestly believed that the user of the motor bicycle was covered by a current insurance policy when it was actually not and the offence was user without policy. Lord Goddard in that decision said thus: "We cannot hold that a belief founded on no reasonable ground can constitute a special reason". That the reason must be special to the facts constituting the offence was reiterated in Chapman v. O' Bagan (1949 (2) All. E. R.690). The dictum of Lord Goddard C. J. in Wittal v. Kirby (1946)(2) Al! E. R.552) was reiterated in R. v. Wickins (1958) 42 Crl. A. Reports 236, C. C. A. In Brown v. Dyerson (1968(3) All ER. 39) a car was being driven at 40 miles per hour on a road on which the speed limit was 30 m. p. h. and the driver was charged with driving a motor vehicle on a road having consumed such alcohol in such a quantity that the proportion thereof in his blood exceeded the prescribed limit. He pleaded guilty. In mitigation, it was pleaded that the driver was taking a sick girl home in her own car. The justices did not disqualify the driver under S.5(1) of the. Act. They did not state grounds for this in open court though they entered in the court's register the grounds as medical emergency and also that driving was not impaired. In mitigation, it was pleaded that the driver was taking a sick girl home in her own car. The justices did not disqualify the driver under S.5(1) of the. Act. They did not state grounds for this in open court though they entered in the court's register the grounds as medical emergency and also that driving was not impaired. The matter was taken in appeal and the court of the Queen's Bench Division observed that there can be no doubt that in a suitable case a medical emergency could constitute a special reason, if by medical emergency one means an unexpected situation arising, in which a man who has been drinking but not intending to drive, is impelled to drive a motor car by a sudden medical necessity. But they found that in that case there was no indication of such an emergency 10. S.41(2) of the Road Transport Act 1949 since replaced by the Transport Act 1962 of New Zealand also contemplates special reasons if a motor driving licence was not to be cancelled in similar circumstances. Dealing with this Justice Cooke said in Reedy v. Brown (1951 New Zealand LR 1040) thus: "A circumstance cannot be a special reason within the meaning of S 41 unless it is special to the facts which constitute the offence in respect of which the court is adjudicating. That view of the matter which is the view that I think I should adopt, and do adopt is in accordance with what was laid down in Whittal v. Kirby (supra), the leading English decision on the matter, which has been repeatedly followed in England." 11. The purpose of making an exception to the normal rule of punishment under the Road Traffic Act in England is more or less similar to the purpose of the provision in the proviso to S.16 (1) of the P.F.A. Act. Considering the nature of the Act, the object of the provision imposing punishment and the scope of the exception clause in the Prevention of Food Adulteration Act, I think the decisions adverted to earlier speaking on the scope of the term "special reasons" may furnish material guidance in understanding the scope of that term as used in the Prevention of Food Adulteration Act. That the punishment should be severe and deterrent in view of the very serious evil consequences on the public by the practice of adulteration is evident from the scheme of the Act as also its background. The court is given a range from which to choose the sentence and judicial discretion calls for exercise within that range. Therefore when the court feels that there are mitigating circumstances there is ample scope for exercise of discretion within the permitted range. Mere projection of mitigating circumstances should not by itself, persuade the court to accept it as special reason and to sentence the offender to a term of imprisonment or fine less than the minimum That should be only on the court finding that special reasons which are also adequate reasons do exist in a case. The guidelines may be stated thus: (1) reason must be special to the offence and not to the offender; (2) 'special reason' is one which is special to the facts of the particular case, that is, special to the facts which constitute the offence; (3) it must be a mitigating or extenuating circumstance; (4) it must in law not amount to a defence to the charge; (5) it must be directly connected with the commission of the offence; and (6) the matter is one which the court ought properly to take into consideration when imposing punishment. 12. There may be a special reason shown in a case and the court may be satisfied that it is so. But that again does not by itself justify application of the proviso to S.16(1) of the Act While the reason may be good as a special reason it may not be adequate. The expression'adequate' means sufficient to meet the requirement. Therefore merely because a special reason is shown and that is relevant the punishment cannot be reduced applying the proviso. Whether it is adequate or not must ultimately depend on the assessment by the court taking into account, the nature of the reasons urged and the attendant circumstances. 13. The expression'adequate' means sufficient to meet the requirement. Therefore merely because a special reason is shown and that is relevant the punishment cannot be reduced applying the proviso. Whether it is adequate or not must ultimately depend on the assessment by the court taking into account, the nature of the reasons urged and the attendant circumstances. 13. The High Court of Gujarat in State of Gujarat and another v. Ramanlal Vithaldas (1975 (1) F. A. C. 125) considering the validity of the plea for a reduced sentence took note of several reasons which are normally urged before the courts as special and adequate reasons At para 6 of the judgment Desai J. said thus: "Dealing with the question of adequate and special reasons at this very stage, it is necessary to observe that the reasons assigned in almost all the cases before this Court can neither be said to be adequate nor can they be said to be special. By and large, reasons which have appealed to the learned Magistrate are (1) that offender was a first offender; (ii) that he was a petty trader and not a manufacturer; and (iii) that he showed repentance by pleading guilty to the charge. Now the first reason, namely, that offender is a first offender could hardly be said to be adequate and special reasons, because the legislature itself has done away with any distinction between first offender, second offender and third and subsequent offender If the legislature ever wanted any treatment of special nature being accorded to the first offender, it was not at all necessary for it to amend S.16 which prior to the amendment did recognise distinction between sentences for the first offence, second offence etc Once the legislature stepped in and did away with this difference between first offence and second offence, the Court cannot, for its own reasons, bring in something which the legislature rejected. Second ground which appears to have appealed to the learned Magistrate was that the offender in question was a petty trader. Even this does not appear to be adequate and special reason. In a city like Ahmedbad people belonging to the weaker section of the society and staying in outlying areas would of necessity be required to approach petty traders having small shops in their locality for purchase of their day to day requirements. Even this does not appear to be adequate and special reason. In a city like Ahmedbad people belonging to the weaker section of the society and staying in outlying areas would of necessity be required to approach petty traders having small shops in their locality for purchase of their day to day requirements. It is these people belonging to either back-ward class or weaker section of the society who would fall a prey to the machination of such petty traders A man belonging to the affluent section of the society would buy his spices and other food stuffs for the whole year and prepared by more sophisticated process and is not likely to be cheated out of his wit day in day out But large bulk of our population belongs to the weaker section of the society, who of necessity are required to buy foodstuffs and spices in small quantities out of their daily earnings, and would be buying the same from the petty traders and. therefore, the activities of these petty traders would be all the more harmful. Hence, that aspect, in my opinion, would be hardly relevant while deciding the quantum of sentence. It must be confessed that while deciding the quantum of fine that may be imposed upon such petty trader, his capacity. to pay may be taken into consideration. But when he is to be given substantive sentence the fact that he is a petty trader is hardly a relevant consideration and must be wholly ignored. Third ground that appealed to the learned Magistrate was that the man showed repentance by pleading guilty. Any one having slightest experience of criminal Courts, would hardly believe that plea of guilty flows ever from repentance It either flows from the substantive sentence starring in one's face and tries to generate sympathy which may be convenient both to the Court and litigant, namely, that the case is seen disposed of without further trial and the accused escapes by paying a paltry fine and both rejoice as a result of it in the process killing the entire spirit of legislation. This tendency must be put down, if necessary, with a heavy hand Plea of guilty not only indicates repentance, but more often it is the result of bargain and judiciary must frown upon such bargain. This tendency must be put down, if necessary, with a heavy hand Plea of guilty not only indicates repentance, but more often it is the result of bargain and judiciary must frown upon such bargain. One is very much remined of an observation, which was made years back that confession is made not necessarily because one feels sorry of what he has done, but one is worried about what is in store for him soon after. Such confessions, in my opinion, are a clear to generate false sympathy in the Court and could not be countenanced. One fails to understand what the learned Magistrate has to do with plea of guilty Assuming that the accused pleads guilty and the case is over, he starts another case, for him one case is as good as any other case. But it was said that an atmosphere was created or generated in the Court where these cases are tried, which almost impelled the accused to plead guilty. It is not possible to believe that some peculiar atmosphere was prevalent in the Court of law and sheer atmosphere of her Court, induced an otherwise innocent man to plead guilty to the charge. If the accused is really guilty and pleads to the same, be in no way advances the cause of justice and if he is really innocent and yet pleads guilty, it is a tendency which must be set at naught. Therefore, viewed from either angle, this voluntary confession or plea of guilty can hardly be said to be either adequate or special reason for awarding less than the minimum sentence. There can never be generosity in determining the reasons which can be said to be adequate or special. Word "special' signifies special to the facts of the case or the accused and adequacy of the reasons has to be examined in the light of the nature of the offence, magnitude of the offence, circumstances in which it is committed and degree of possible harm caused." 14. Many cases have been brought to my notice as illustrating the application of the proviso in instances where there is a plea by the accused for imposition of lighter sentence. Many cases have been brought to my notice as illustrating the application of the proviso in instances where there is a plea by the accused for imposition of lighter sentence. It may not be necessary to refer to these, for, though accused have been leniently treated in these cases and some reason or other stated as justifying such a coarse there has not been any relevant discussion as to scope and content of the term 'special and adequate reasons'. It may be of interest to notice the reasons which usually weigh with courts in imposing sentences less than the minimum. In the batch of cases heard by me along with this case I have found the following reasons stated by the Magistrates as special reasons as a consequence of which the accused in these cases have been sentenced below the minimum by applying the proviso. These reasons are indicated here only by way of illustration. 1. The accused is a first offender. 2. The accused is an young man of 29. 3. Accused has to maintain himself and his family. 4. Accused is a small retail dealer. 5. The report of the Analyst reveals that no injurious ingredients to health was mixed with the article. The addition of 44 percent water is not injurious to health. 6. Adulteration is not at the instance of the accused. 7. The accused is a petty milk vendor. 8. The accused looks highly penitent. 9. The accused is an old man. 10. The accused is a petty shop keeper. 11. Adulteration is of a lesser degree. It is interesting to notice how the mind of courts work in the application of the judicial discretion. The need for guidelines therefore becomes evident. 15. Coming to the facts of the case before me I think the learned Magistrate was plainly misguided in assuming that the case being one of sale of sub-standard milk the minimum need not be imposed. The very statement of the principle is contrary to law. There is a reason added to this and that is that the accused is a petty milk vendor. That by itself would not be a special reason much less an adequate reason. It is not a special reason because it is not special to the facts of the case. The very statement of the principle is contrary to law. There is a reason added to this and that is that the accused is a petty milk vendor. That by itself would not be a special reason much less an adequate reason. It is not a special reason because it is not special to the facts of the case. It is a general reason, for, if all petty vendors are to be taken out of the purview of S.16(1) and the proviso is to be applied to them that could have been stated as a general rule. Hence I find that there is no justification for imposing a sentence below the minimum. The learned Sessions Judge does not advert to any other reason though he reduces the substantial sentence of rigorous imprisonment of one month to imprisonment till the rising of the court. The reasoning of the learned Sessions Judge is that a sentence of rigorous imprisonment for one month will serve no purpose. If the imposition of the sentence for a term less than the minimum prescribed was not justified there would be no justification to reduce the sentence further. The object of the sentence being deterrence there would be no purpose served in reducing the sentence to one of imprisonment till the rising of the Court. The approach of the learned judge cannot be appreciated. In these circumstances I am constrained to interfere with the sentence and enhance it, to make it in accordance with law. It has been very vehemently argued by counsel in this case as well as similar other cases heard by me along with this case that taking note of the fact that the case was taken up by this Court in suo mote revision and also the fact that petty vendors have been arrayed in almost all these cases as accused T should find that the interests of justice would not be served by enhancing the punishment. Whatever may be the sympathies one may have for persons such as the accused on the ground that they are only comparatively minor culprits 1 do not think that 1 should be persuaded to act ignoring the letter and spirit of the Act and that after having stated the law If there is no adequate and special reason I have found that there is none the only other course is to award a sentence in accordance with law.1 must notice that even within the permitted range there is scope for exercise of discretion. There is a wide range of punishment to choose from and taking due note of the circumstances indicated what could appropriately be done is to choose the minimum in that range and impose that on the accused That means that the sentence of the accused will stand enhanced to one of simple imprisonment for 6 months and a fine of Rs. 1000/-. In default of payment of fine the accused will undergo simple imprisonment for 3 months more. The case has not been posted again for hearing on the question of sentence because the revision itself was beard only in regard to sentence.