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Madhya Pradesh High Court · body

2000 DIGILAW 782 (MP)

Khanchand v. State of M. P.

2000-08-07

A.K.GOHIL

body2000
Short Note The petitioner has preferred this criminal revision under section 397 read with section 401, Cr.P.C. against the order passed by II Additional Sessions Judge, Neemuch in Cri. Appeal No. 145/97 on 8.6.2000 thereby confirming the judgment of the ACJM, Neemuch in Cri. Case No. 672/91 on 23.7.97 and also confirming the conviction and sentence of six months R.I. and a fine of Rs. 2,000/- and if not depositing the amount of fine further sentence of 6 months under Sec. 7(1) read with Sec. 16(1)(A) of the Prevention of Food Adulteration Act. As per prosecution story on 18.11.90 on Food Inspector S.B. Singh, Flying Squad, Mandsaur inspected Prabhat Bakery owned by the applicant. The applicant was personally present on shop at the time of inspection. The Food Inspector gave his introduction and purchased 1600 gms. of biscuits, out of the stock which was kept for sale on his suspicion, that they were adulterated, on payment of Rs. 45/- with a view to send them for chemical examination. The samples were collected as prescribed in Form No.6, receipt was also obtained. All the purchased material was distributed in 3 packets. All the samples were properly packed, sealed, signed and dated and the signatures of the applicant were also obtained on those samples. On packet of the samples in form No.7 was forwarded to the Public Analyst, Bhopal for chemical examination. One copy of memorandum in form No. 7 was separately despatched by registered post to the Public Analyst and the remaining two samples were deposited with the local health authority, Mandsaur in his office. After receiving the report from Public Analyst that the sample was found adulterated the matter was referred to the local health authority for permission for filing complaint. The Food Inspector after obtaining permission from the local health authority filed a complaint. The report of the Public Analyst dated 12.11.90 is Ex. P-19 and in the opinion of the Public Analyst the sample was found adulterated and not as per the prescribed standards. Later on 29.4.91 the applicant applied to the Court u/s 13(2) of the Prevention of Food Adulteration Act for examination of the samples by the Central Food Laboratory and by order dated 12.9.91 that application was allowed and the sample was sent for examination to the Central Food Laboratory, Gaziabad. The report of the Central Food Laboratory is Ex. Later on 29.4.91 the applicant applied to the Court u/s 13(2) of the Prevention of Food Adulteration Act for examination of the samples by the Central Food Laboratory and by order dated 12.9.91 that application was allowed and the sample was sent for examination to the Central Food Laboratory, Gaziabad. The report of the Central Food Laboratory is Ex. P-26, according to which the sample did not conform to the standard of biscuits laid down and it was found that the sample was adulterated. The learned trial Court after appreciating the evidence on record found the applicant guilty for manufacturing and sale of adulterated and sub-standard biscuits and charges were found proved against him. He was convicted u/s 7(I) read with section 16(I) (A)(i) of the Prevention of Food Adulteration Act and sentenced for 6 months RI and a fine of Rs. 2.000/-. The learned first appellate Court also by its reasoned order dated 8.6.2000 dismissed the appeal and confirmed the conviction and sentence both against which this revision has been preferred. I have heard the learned counsel for parties and gone through the record of the trial Court. The only submission of the learned counsel for the applicant is that the applicant is in jail since 8.6.2000 and considering the material available on record and looking to the age of the applicant that he is aged about 41 years. his sentence be reduced to the sentence already undergone. I have considered the submissions in the light of the evidence on record of the trial Court and the judgments of two Courts below and also perused the decisions cited by the learned counsel for the applicant for releasing him on imprisonment upto the period which he has already undergone. The learned counsel for the applicant cited the decision of this Court in case of Ismail Khan v. Nagar Palika Parishad reported in 1997 Vol. 2 EFR 222, A case of adulteration in groundnut oil. Another case of Pradeep Kumar v. State of M.P. reported in 1999 Vol. 2 EFR 337 which is also a case of adulteration in Atta and also submitted the case of Ram Prasad v. State of M.P. and another reported in 1998 Vol. 1 EFR 358 for selling the substandard groundnut oil. Another case of Pradeep Kumar v. State of M.P. reported in 1999 Vol. 2 EFR 337 which is also a case of adulteration in Atta and also submitted the case of Ram Prasad v. State of M.P. and another reported in 1998 Vol. 1 EFR 358 for selling the substandard groundnut oil. Considering the aforesaid decisions cited by the applicant and also his submissions and his prayer for the sentence undergone and looking to the overall evidence and material on record I do not find that it is a fit case in which the prayer for the sentence undergone should be considered because the applicant is a manufacturer he is running a Bakery which is one of the production unit. In all other cases which have been cited by the learned counsel the accused persons were not involved in manufacturing of the material like groundnut oil or Atta but they were the users and seller men. In this case looking to the facts and circumstances and as well as the nature of the offence and the fact that the applicant is a manufacturer of biscuits in his own factory it cannot be said that the sentence of 6 months RI granted by the Courts below is on higher side. It is a fact that these biscuits which are manufactured by applicant as Bakery owner are being purchased and used by all middle class families and specially used by and for children therefore. applicant cannot be allowed to manufacture and sale of the substandard and adulterated material and later on to pray for release on undergone sentence. The applicant is a young man of 41 years who cannot be said to be an aged person. The object of the Prevention of Food Adulteration Act is to catch hold of the real offenders who adulterated food at the stage of its manufacturing. Therefore it cannot also be a ground for any sympathetic consideration. Thus I do not see any case for interference at this stage because there is nothing on record to disbelieve the evidence of the aforesaid witnesses and the findings recorded by two Courts below and which also does not suffer from any patent perversity. There is also no gross violation of procedure or perversity in the reasoning given by two Courts below resulting in miscarriage or total failure of justice to warrant for interference in this revision. There is also no gross violation of procedure or perversity in the reasoning given by two Courts below resulting in miscarriage or total failure of justice to warrant for interference in this revision. In the case of Prem Ballab v. State (Delhi Admn.) reported in AIR 1977 SC 56 , it has been held as unders : “Adulteration of food is a menace 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 resort to the provisions of the Probation of Offenders Act 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 a 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. It may be pointed out that the Law Commission also in its Forty Seventy Report recommended the exclusion of applicability of the probationary process in case of social and economic offences and 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 that person is under eighteen years of age. This amendment of course would not apply in the present case but it shows the legislative tread which it would not be right for the Courts to ignore. This amendment of course would not apply in the present case but it shows the legislative tread which it would not be right for the Courts to ignore. We cannot, therefore, give the benefit of the Probation of Offenders Act, 1958 to the appellants and release them on probation." In view of the aforesaid legal position, the conviction and sentence both are justified and looking to the gravity of the offence, 6 months RI is not much which requires any reduction. Therefore, no interference is required by this Court in the sentence awarded by the Courts below, which is already very moderate. In the result, this revision has no merit and accordingly it is dismissed. Record be returned.