Chhotelal v. State of Rajasthan — 1987 DIGILAW 347 (RAJ)

GUMAN MAL LODHA, J.—These two criminal revision petitions under section 397 and 401 of the Criminal Procedure Code are directed against the judgment of Additional Sessions Judge, Kota dated 13.12.1982 in appeal No. 11/82 Chhotelal Vs. State against the judgment of Munsiff and Judicial Magistrate Kota City North, Kota dated 27.9.1980 in Criminal Case No. 53 of 1980 State Vs. Chhotelal Ram Narain under section 7/16 P.F.A. Act. 2. Both the cases arise from the same judgment and therefore, I have accepted the joint request of learned counsel for the parties as well as Public Prosecutor that they must be heard and decided by a common judgment. 3. The adulteration in the present case is of chillies and the chemical report of the Public Analyst certifying that it is adulteration would not be challenged in any manner in this court or in the lower court. The question is whether in such case of adulteration where as per the finding of both the lower courts Chhotelal was doing the business in the shop which according to the prosecution is owned by Ram Narain. The conviction of Chhotelal and Ram Narain both is liable to be confirmed by this court or to be quashed. If the conviction is to be confirmed whether there is any scope of reduction of sentence for both or any of them. 4. Mr. Jain counsel for the Ram Narain owner has stated that Ram Narain is not liable because he was made accused in 1976 whereas the sample was taken in 1972 or an application moved by the prosecution and therefore, he could not get the sample analysed thereafter depriving him of a valuable right. Mr. Jain also submitted that in any case Ram Narain could not know what stuff is being sold at his shop and the liability can be of a person who sold the stuff at that time and not of Ram Narain. Lastly Mr. Jain submitted that sentence must be reduced in the alternative to that already undergone. 5. Mr. Tyagi, learned counsel for Chhotelal submits that so far as Chhotelal is concerned he is a poor employee and was a sort of salesman in the shop. He never knew what stuff is being sold, and therefore, he was not liable in any manner whatsoever. He referred to section 17 of the Prevention of Food Adulteration Act in this respect. Mr. He never knew what stuff is being sold, and therefore, he was not liable in any manner whatsoever. He referred to section 17 of the Prevention of Food Adulteration Act in this respect. Mr. Tyagi then submitted in the alternative that the accused Chhotelal was 19 years of age at that time and a young man and much time has passed since then and therefore he must be released on the sentence already undergone, if this court is not inclined to accept the revision and acquit him. 6. Mr. Kamal Shrimal, learned Public Prosecutor has vehemently opposed both the revision petitions. According to him so far as appreciation of the evidence is concerned the two courts have appreciate the evidence and have found that chillies which is a food articles used in the preparation of the food every day was adulterated and was being sold adulterated by Chhotelal in the shop owned by Ram Narain. Mr. Shrimal then submitted that the latest trend both of Legislature as well as of the Apex Judiciary is not to show any leniency in such matters. In this respect he referred to the two judgments of the Apex Court in which emphasis has been laid time and again on severe punishment in such cases. The first judgment is Pyarali Tejani vs. Mahadeo(l) of a Five Judges Bench presided by A.N. Ray, the then Chief Justice with Palekar, Chandrachud, Bhagwati and Krishna Iyer. Speaking through Krishna Iyer J. the Honble Supreme Court noticed that the prosecution in food adulteration has resulted in conviction but the sentence passed by the Magistrate was ridiculously inadequate. The court then considered the various theories of punishments and the reformatory and rehabilitatory purpose of the Probation of Offenders Act and from para 19 to para 25 Honble Justice Krishna-Iyer speaking for the court took pains to point out that these are cases where no chances can be taken by society with these accused who are antisocial operation disguised as a respectable trade imperil numerous innocents. It was held that it is a security risk of the society and these economic offences committed by white collar criminals are unlikely to be dissuaded by the gentle probationary process. It was held that it is a security risk of the society and these economic offences committed by white collar criminals are unlikely to be dissuaded by the gentle probationary process. The court then referred to 47 Report of the Law Commission of India who recommended the exclusion of the Act to social and economic offences so far as Probation is concerned and while doing so they said "the justification of all sentences is the protection of society. There are occasion when offenders is so anti social that his immediate and some time prolonged confinement is the best assurance of the society protection. The consideration of rehabilitation has to give way because of the paramount need for the protection of society. The Honble Court considered that social and personal facts and features of the crimes are to be noticed and the provision of Food Adulteration Act cases where the object is to save society and Parliament has by repeated amendments made emphasized the statutory determination to stamp out food offences by severe sentences in such cases, the judicial discretion which has been narrowed down by the Legislature repeatedly should be appreciated. 7. Even in cases of supari which was not even a staple diet the court took the view that addition of saccharin cannot be excused and then the court noticed that although the court can bring down the sentence to less than minimum prescribed in section 16(1) on adequate grounds but this cannot be done and should not be done. The court then analysed the situation of which Mr. Tyagi has drawn a graphic picture before me in para No. 23, in the following words:- "We are not unmindful of the possibilities of village citullers and tinny grocers being victimised by dubious enforcement officials which may exacerbate when punishments become harsher and the marginal hardships caused by stern sentences on unsophisticated small dealers. Every cause has its matter and Parliament and Government not the court must be disturbed over the search for solutions of these problems Savage severity may not always prove effective and may be cruel on petty and marginal offences." 8. After discussing the above the learned Judge of the Honble Court then came heavily against the Magistrate who failed to appreciate the gravity of the food offences and imposed a naively negligible sentence by the hundred rupees fine. After discussing the above the learned Judge of the Honble Court then came heavily against the Magistrate who failed to appreciate the gravity of the food offences and imposed a naively negligible sentence by the hundred rupees fine. In para 24 this sentence by the magistrate was condemned and then the court observed that measures taken in may advanced countries for the evolution of a rational and consistent policy of sentencing was noticed and ultimately the court did not reduce the sentence which was imposed lateron by the High Court. The High Court sentence was upheld and the court said there are occasions when an offender is so antisocial that his immediate and sometimes prolonged confinement is the best assurance of societys physical protection. It may be noticed that in this Pyarali Tejanis case the High Court was approached by the accused against the conviction and the sentenced which was imposed by the lower court of the fine of Rs. 100/-. The High Court instead of acquitting the accused or reducing the sentence or confirming the sentence enhanced the punishment to the statutory minimum of six months imprisonment and Rs. 1000/-fine. It was against this judgment of the High Court of enhancement that the dealer went to the Supreme Court through twin routes of Article 32 through a writ petition and challenged settled concepts and hearing every arguments on the familiar flag of breach of fundamental right and of Article 136 a remedy to correct gross errors of law leading to the manifest injustice of loss of liberty for a long term of one who the prosecution charge jeopardises the many consumers. 9. The above view earlier was again reiterated in Prem Vallabh (2) by the Supreme Court wherein a case of adulteration weighty observations were made by Honble Justice Bhagwati speaking for the court in para No. 7 which reads as under:- "The appellants then pleaded that in any event on the facts and circumstances of the present case the benefit of Probation of Offenders Act, 1958 should be given to them and they should not be consigned to the rigorous of jail life. This plea also does not impress us. It is no doubt true and that was laid down by this court in the first pronouncement made by it on the subject in Ishar Das Vs. This plea also does not impress us. It is no doubt true and that was laid down by this court in the first pronouncement made by it on the subject in Ishar Das Vs. State (1972)2 SCC 65-( AIR 1972 SC 1295 ) that the operation of the Probation of Offenders Act, 1958 is not excluded in case of persons found guilty of offences under the Prevention of Food Adulteration Act, 1954. To quote the words of Krishna Iyer J. in P. K. Tejani Vs. M. R. Dange (1974)2 SCR 154 =( AIR 1974 SC 228 ). "The rehabiliatory purpose of the Probation of Offenders Act, 1958 is pervasive enough technically to take within its wings and offence even under the Act." But in the very same decision in Ishar Dass case (supra) this court sounded a note of caution which must be borne in mind. "Adulteration of Food is a menance to public health. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food, In view of the above object of the Act and the intention of the Legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months and a fine of rupees one thousand has been prescribed the courts should not lightly in the case of persons above 21 years of age found guilty of offences under the Prevention of Food Adulteration Act." The imperative of social defence must discourage the applicability of the probation principle. No chances can be taken by society with a man whose anti-social activities, in the guise of respectable trade, jeopardise the health and well-being of numerous innocent consumers. The adulterator is a social risk. It might be dangerous to leave him free to carry on his nefarious activities by applying the probation principle to him Moreover, it must be remembered that adulteration is an economic offence prompted by profit motive and it is not likely to lend itself easily to therapeutic treatment by the probationary measure. The adulterator is a social risk. It might be dangerous to leave him free to carry on his nefarious activities by applying the probation principle to him Moreover, it must be remembered that adulteration is an economic offence prompted by profit motive and it is not likely to lend itself easily to therapeutic treatment by the probationary measure. It may be pointed out that the Law Commission also in its Forty Seventh Report recommended the exclusion of applicability of the probationary presumably in response to this recommendation, the Legislature has recently amended the Prevention of Food Adulteration Act, 1954 by introducing section 20AA providing that nothing contained in the Probation of Offenders Act, 1958 or section 360 of the Code of Criminal Procedure 1973 shall apply to a person convicted of an offence under the Act unless the person is under eighteen years of age. This amendment of course would not apply in the present case but it shows the legislative trend which it would not be right for the court to ignore. We cannot therefore, give the benefit of the Probation of Offenders Act, 1958 to the appellants and release them on probation." 10. Now in view of the above two judgments even though there may be stray cases where the Honble Supreme Court has also taken the liberal view of releasing the accused on the sentence already undergone as it happened in Municipal Corporation Delhi Vs. Manmohan, (3), Lingappa Chetty Vs. Hugali Darbar Municipal Corporation, (4), Municipal Corporation Delhi V. Babu Ram (5 and Ramlabiya Vs. Municipal Corporation Delhi (6) I have to consider that these are all cases in which the judgment of the Honble Supreme Court of Five Judges referred to above was not referred and discussed. 11. Moreover so far as the case of Ramlabiya (supra) is concerned it is to be noticed that by a later amendment the effect was that what was earlier offence no longer continue to be offence and therefore, in para 6 the Honble Judges said that as per the specification in Rule which have now come into force lateron the earlier standard has been changed and therefore, it is no longer an offence and this circumstance is relevant on the question of sentence The counsel for the corporation did not press for a substantial sentence and in these circumstances sentence of Rs. 1, 000/- was given. 12. 1, 000/- was given. 12. It would thus be seen that so far as there is no judgment of five Judges which take a different view from the one taken in the earlier case referred above Pyarali Tejani Vs. Mahadeo (supra) in which the Five Judges discussed at length the principles which should govern in respect of the punishment to be given in cases of food adulteration and devoted the major part of the judgment on the theories of punishment from para 19 to 25 and ultimately confirmed the enhancer;.em of the sentence which was done by the High Court even though the magistrate sentenced the accused only by fine. 13. Mr. Tyagi and Mr. Jain also referred to various judgments of the High Courts in this connection and in particular Manga Ram Vs. State of Rajasthan (7) and other such judgments will have to be viewed and considered in the light of effect of the five Judges judgment of the Honble Supreme Court referred to above. It may be mentioned that in Ibrahim Haji Ummar Haji v. Food Inspector Nileshwar(8), the Honble Supreme Court did not accept the contention of the learned counsel in para 7 that the High Court should not have interfered in the matter of sentence. That was a case where the Magistrate inflicted the minimum sentence of six months and fine of Rs. 1,000/- for adulteration and the proviso provided that for adequate reasons the sentence of imprisonment for less than six months can. also be reduced. The Sessions Judge in revision reduced the sentence on the ground that the accused was not present when the sale was affected. The Honble Supreme Court held that High Court was justified in revising the judgment of Sessions Judge and restoring the judgment of Magistrate for the purpose of sentence because the sentence in such cases is adequate and the minimum should have been imposed and the fact that the accused was not present cannot be said to be adequate or special reason for reduction of sentence. 14. 14. It would thus be clear that the trend both legislative as well as judicial in the matter of sentence in Food Adulteration cases is too patent and exhibits a sort of anxiety and concern by both wings of the State the judiciary as well as the executive legislative also for providing protection to the health of the society and for that ensuring that antisocial elements who want to profit themselves by creating hazard for the health for the society should be dealt with severely and deterrent punishment should be given. 15. Now the question is that being so far as present cases are concerned the adulteration being of chillies which is an every day food stuff where the poorest of the poor also uses it, even when he cannot afford two square meal a day and still the accused want to make profit out of the health hazards which may be created on account of such adulteration, the minimum punishment theory cannot be further minimise or under mind or liberalise by unmisplaced leniency. 16. Now the question is that both the accused Chhotelal as well as the other accused Ram Narain want to shift the liability. Mr. Tyagi took pains to point out that Chhotelal has stated that so also his defence witness that he was only getting a petty amount for doing the work on the shop and he therefore, was not at all responsible for the sale of adulterated stuff. I find from the judgment of both the courts so also the statement of Chhotelal at earlier stage that the accused Ram Narain maternal uncleand further he has stated that he used to be maintained by Ram Narain where he used to take his meal etc at the Ram Narains place in addition to that he is to get salary of Rs. 60/- in those days. Now it was for the accused in such circumstances as required by section 17 to show that even though he was working on the shop and he was concerned with the sale but in the adulteration of the chillies so far as he was concerned he cannot be held to be responsible or liable as the offence was committed without his knowledge and that he exercised all due diligence in the commission of such offence. Obviously, there is not an iota of proof for this nor there is any such suggestion in the cross examination or otherwise on the bedrock on which I can give a finding. 17. The scheme of section 17 of the Prevention of Food Adulteration Act goes to show that all persons who are incharge and responsible of the conduct of the business are liable and they can be absolved of the liability only if they prove that the offence was committed without their knowledge and that they exercise all due diligence to prevent the commission of such offence. The scheme of section 17 of the Prevention of Food Adulteration Act would show there is a departure in the normal principle of burden of proof and once an accused is found to be guilty prima facie for possession of or for sale of adulterated goods then it is for him to show under the proviso that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of offence. 18. Obviously, it has not been done either Chhotelal nor Ram Narain have laid iota of evidence to prove that the offence was committed without their knowledge and that they took all precaution as required by proviso to section 17 of the Prevention of Food Adulteration Act. 19. Lastly it was argued that since the offence was committed in 1972 and now we are in 1987 therefore, the accused must be released without any substantive imprisonment. Now the Honble Supreme Court in 1983 SCC 347 has considered this aspect of the case also and held that although the appeal of 1973 was being heard in 1983 but that cannot beany ground for interfering with the sentence of three years imposed on them. Para 9 makes a mention of this discussion. 20. In view of the above, the contention of Mr. Tyagi and Mr, Jain cannot be accepted for giving lesser punishment. Mr. Tyagis objection that his name was subsequently added and therefore he could not take the benefit of having second test from Sample Food Laboratory is also of no consequence. Para 9 makes a mention of this discussion. 20. In view of the above, the contention of Mr. Tyagi and Mr, Jain cannot be accepted for giving lesser punishment. Mr. Tyagis objection that his name was subsequently added and therefore he could not take the benefit of having second test from Sample Food Laboratory is also of no consequence. It is not in dispute that this accused Ram Narain never wanted new lest to be done by Central Food Laboratory would have said that the sample now sent is not in a condition where the test can be made then of course he should have taken benefit of it. 21. In the absence of that in my opinion no prejudice has been caused. 22. The result of the above discussion is that both these revision cannot succeed and they are dismissed.