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1993 DIGILAW 6 (GUJ)

STATE OF GUJARAT v. RASIKLAL AMEDBHAI SHAH

1993-01-19

J.N.BHATT

body1993
J. N. BHATT, J. ( 1 ) IN this appeal for enhancement of sentence under Section 377 of the Code of Criminal Procedure 1973 (the Code for short) the appellant-State has questioned the adequacy of the sentence order passed by the learned Judicial Magistrate (First Class) at Savli in Criminal Case No. 286 of 1983 on 9. 5. 1983 whereby the respondent-accused is awarded sentence till rising of the Court and the sentence of Rs. 500/ -. and in default imprisonment for one month for the offence punishable under Sections 7 and 16 of the Prevention of Food Adulteration Act 1954 (the Act for short ). ( 2 ) A resume of the material facts giving rise to the present appeal may shortly be narrated at this stage so as to appreciate the merits and challenge against it. ( 3 ) ACCORDING to the prosecution case on 2. 3 at about 2. 00 p. m. Respondent No. 2- original complainant Mr. K. A. Patel Food Inspector visited the shop of Respondent No. 1-original accused known and as Bhavnagari Farsan Mart at Khadia Bazar Savli and purchased 900 gms of Dudhi-Halva on payment of Rs. 12. The said food article Dudhi-Halva had silver leaf or foil on it. The complainant divided the said food article into three bottles equally and sealed them in presence of Panchas. One of the bottles containing the sample of food article was sent to the Public Analyst at Baroda for analysis and report. ( 4 ) THE Public Analyst on examination of the said sample of food article found that the silver foil as coated on Dudhi Halva did not contain any silver as such but contained only aluminium. Relying on the said upon and after obtaining the sanction for the prosecution against the accused the Food Inspector filed a Criminal Case No. 286 of 1983 in the Trial Court contending that the accused was selling adulterated food and thereby he was guilty for the offence punishable under Sections 7 and 16 of the Act. ( 5 ) THE accused appeared and pleaded guilty by submitting a purshis at Exh. 3 in the Trial Court. However according to the accused he did not know the legal position and it was his first offence and therefore he pleaded for mercy. ( 5 ) THE accused appeared and pleaded guilty by submitting a purshis at Exh. 3 in the Trial Court. However according to the accused he did not know the legal position and it was his first offence and therefore he pleaded for mercy. Considering the facts and circumstances and the report of the Public Analyst and also the prayer for mercy the Trial Court after convicting the accused for the said offence awarded the sentence of imprisonment till rising of the Court and also sentence of fine of Rs. 500/- and in default to undergo imprisonment for one month on the same day that is on the day when the accused pleaded guilty. ( 6 ) THE appellant-State being aggrieved by the quantum of sentence being less than the minimum prescribed preferred this appeal under Section 377 of the Code for enhancement of sentence. Thus it is the contention of the State in this appeal that the learned Trial Magistrate has committed serious error of law in not awarding the minimum sentence prescribed under the law while accepting the plea of guilty. The contention of the State is that the accused is guilty of the offence which is punishable under Section 16 and it is punishable with imprisonment for a term which shall not be less than six months and with a fine which shall not be less than Rs. 1 0 It is therefore contended that the impugned order of sentence of imprisonment till rising of the Court and to pay a fine of Rs. 1 0 It is therefore contended that the impugned order of sentence of imprisonment till rising of the Court and to pay a fine of Rs. 500 is not only unjust but it is also illegal The contention may appear to be captivating but not convincing and acceptable ( 7 ) FIRST of all the prosecution is bound to prove the alleged offence It appears that the learned Trial Magistrate passed the impugned conviction and sentence order accepting the plea of guilty of the accused There is no doubt about the proposition of law that conviction on plea of guilty is permissible However the Court is obliged to consider the nature of the allegation and accusations made by the prosecution against the accused When it appears to the Court that the particulars from the record of the prosecution do not disclose any offence then in that case the substance of accusation is not required to be stated to the accused so know as to whether the accused pleads guilty or not or he has any defence to make. ( 8 ) IN this appeal for the enhancement of sentence under Section 377 of the Code it is always open for the accused to plead for his acquittal or for the reduction of the sentence in view of the specific provision of Sub-section (3) of Section 377 of the Code Relying on the aforesaid provisions of Sub-section (3) of Section 377 it has been contended that the accused is entitled to acquittal as there is no offence as such ( 9 ) IT is an admitted fact that the sample of food namely Dudhi- Halva was collected by the Food Inspector from the accused which had the so-called silver foil on it It is also an admitted fact that no standard for Dudhi-Halva has been prescribed and in absence of any evidence on record to the effect that Aluminium foil was injurious to the health it cannot be contended that such a leaf or foil for coating the Dudhi-Halva would make an article of food adulterated On the contrary the learned Trial Magistrate has observed in his impugned judgment that the report of the Public Analyst does not contain any observation or averment that the Aluminium foil examined by him is in any way injurious to health on consumption This aspect is considered by the learned Trial Magistrate and has also held that the adulteration in the food cannot be said to be so serious However the accused is convicted on the basis of his plea of guilty. The so called silver foil or leaf is used for coating the food sample Dudhi Halva presumably for decorative purpose. It was not the main article of food. The main article of food was examined by the Public Analyst and he found that the sample contained Aluminium foil. ( 10 ) IT may be mentioned that the standard of Silver leaf (Chandi ka warq) is prescribed under Entry No. A. 27. 01 in Appendix B of the Prevention of Food Adulteration Rules 1955 (the Rules for short has been prescribed in the said entry that Silver leaf shall be in the form of sheets free from creases and folds and shall contain not less than 99. 9 per cent of silver. 01 in Appendix B of the Prevention of Food Adulteration Rules 1955 (the Rules for short has been prescribed in the said entry that Silver leaf shall be in the form of sheets free from creases and folds and shall contain not less than 99. 9 per cent of silver. It is nobodys case that the accused had used adulterated Silver leaf to coat the food article namely Dudhi Halva No such allegation is also remotely made in the complaint Therefore it was unnecessary for the public Analyst or for the complainant to see as to whether or not the so-called silver leaf used for the purpose of coating the Dudhi-Halva was answering the required standard prescribed for Silver leaf. ( 11 ) MOREOVER the prosecution has also not lodged any case of mis-branding In absence of any case of mis-branding obviously there was no necessity to consider or state the accusation pertaining the mis-branding of the article of food The use of Aluminium leaf purported as Silver leaf for coasting the Dudhi Halva would at the most by mis-branding of that article as defined in the Act Since no such case was ever pleaded or stated the accused could not have been convicted even for the offence of mis-branding ( 12 ) MOREOVER it is an admitted fact that the report of the Public Analyst did not state and contend that the consumption of Aluminium foil used as coating on the food article Dudhi Halva was in any way injurious to health In absence of any such evidence the sample of food article could not be said to be adulterated ( 13 ) THE view which this Court inclined to take in this matter is also supported by the decision of this Court in Criminal Revision Application No. 173 of 1984 decided on 31st July 1992 and also the decision of the Bombay High Court rendered in State of Maharashtra vs. Ramkishan Gangadin Yadav and Anr. 1980 (2) Prevention of Food Adulteration Cases 107. ( 14 ) HAVING regard to the facts and circumstances emerging from the record of the present case and the relevant proposition of law the impugned order of conviction and sentence is required to be quashed. 1980 (2) Prevention of Food Adulteration Cases 107. ( 14 ) HAVING regard to the facts and circumstances emerging from the record of the present case and the relevant proposition of law the impugned order of conviction and sentence is required to be quashed. Needless to reiterate that the article of food in question was Dudhi Halva and the prosecution has failed to prove that the said article of food was in any way adulterated. It was incumbent upon the prosecution to prove that the article of food in question was adulterated and also to establish beyond reasonable doubt that the so-called Silver leaf (Aluminium foil) to coat the article of food was in any way injurious to health on its consumption. In absence of any such proof if cannot be contended even for a moment that the prosecution has succeeded in proving the guilt of the accused. ( 15 ) IN view of the aforesaid circumstances and discussion this Court has no hesitation in holding that the conviction of Respondent No. 1 -original accused even on the plea of guilty by the Trial Court under Section 7 (i) of the Act is required to be quashed. Therefore there would not arise any question of examining the enhancement of sentence awarded by the Trial Court. Since the sentence under Section 7 (i) of the Act itself is illegal and bad and in view of the specific provisions incorporated in Sub-section (3) of Section 377 of the Code the accused is entitled to plead acquittal and therefore in the opinion of this Court the impugned order of conviction and sentence is required to be quashed and set aside. ( 16 ) THE challenge against the impugned order of conviction and sentence on several other grounds are not required to be gone into at this stage. ( 17 ) IN the result the impugned order of conviction and sentence is quashed in its entirely. The Respondent No. 1-original accused is acquitted of the said charge against him. The amount of fine if paid shall be refunded to the Respondent No. 1-original accused. The appeal stands disposed of as dismissed accordingly. Appeal Dismissed. .